San Jose Divorce Lawyers Blog

Divorce, Child Support, and Artificial Insemination

Couples considering a San Jose divorce who have children conceived through artificial insemination often have questions surrounding how child support will be determined. The answer to this question depends on a few different factors, but generally children conceived within a marriage are presumed to be the legal children of the husband and wife unless proven otherwise. This means that a man who consented to having a child through the use of sperm donation is presumed to be the legal father even if donor sperm was used. If the couple later divorces, he would be asked to pay child support just as he would if the child was biologically his. If he has both biological children and children conceived with the aid of donor sperm, they are all considered equal in the eyes of the law.

Fertility clinics with licensed and trained professionals on staff keep careful records to try to avoid potential legal problems, but because this practice has not existed until relatively recently, it remains possible that some new legal wrinkle and/or problem may surface that nobody thought of before. The laws regarding whether a sperm donor has any rights or obligations can vary by State. The combination of a new procedure and 50 different sets of laws can result in all kinds of interesting outcomes. These future unknown problems are a good reason to seek out the advice of a good divorce attorney.

When a couple is married, the consent of both spouses is generally required for an artificial insemination using donor sperm. Generally, when the donor is kept anonymous and the insemination is done by a licensed medical doctor the donor will avoid legal responsibility for a child born from the artificial insemination. Currently in California a sperm donor who donates anonymously and the insemination is performed by a licensed doctor will not be considered a legal father; however, no attorney can guarantee that the law will never change in the future. If you face these issues in a divorce you should seek competent legal counsel and consider getting a written agreement dealing with this.

Troubles with artificial insemination and child support happen when a physician did not perform the procedure. Couples who tried what is informally known as the “turkey baster” method because they wanted to keep the procedure private or did not have the money for services at a traditional fertility clinic may have a much harder time determining child support obligations if the husband later denies having consented to the use of donor sperm. There can also be trouble if the sperm donor later decides that he wishes to be a part of the child’s life, since he is technically the biological father of the child. Informal verbal agreements are difficult to prove in a court of law, so you will need to enlist the services of an experienced San Jose divorce attorney to help prepare your case.

Special Tips for Divorced Women in Their 50s

Divorce isn’t easy at any age, but going through a San Jose divorce as a woman in your 50s can be especially challenging.

When you are divorcing in your 50s, you’re likely to be coming out of a long term marriage (in California, “long term marriage” is a term of art meaning more than 10 years). No matter how you look at it, the loss of someone you’ve shared your life with for the past 20 or 30 years is devastating. Be kind to yourself during this time and allow yourself the space you need to heal emotionally.

Emotional support is very important when you are going through a divorce, especially when you’re in your 50s. Younger women often have the responsibilities of caring for small children to distract them during the divorce process, while women in their 50s are likely to find themselves with plenty of time alone to spend brooding about the end of the relationship, or reading blog posts from others. It is normal to experience some sadness when filing for divorce, but be on the lookout for drastic changes in mood or behavior that could indicate you are suffering from clinical depression.

Do not be afraid to seek the assistance of a counselor or therapist if needed — preferably before you file for divorce. While divorcing your husband because he is the cause of all that emotional pain can make sense, particularly if he is physically abusive, has an alcohol, drug, or gambling addiction, divorcing him and then later realizing that he was not the cause of your pain and that, in fact, you just separated yourself from the one person who was most likely to help you deal with the pain would be a big mistake. A good divorce attorney may not be able to get your husband back for you, after he has been served with the legal papers. If you attend church on a regular basis, your worship leader may be able to provide some comfort during this time and/or provide some valuable counseling and insight.

If you worked part time or stayed home during your marriage to tend to your children, you’ll need to be thinking about how you’ll support yourself financially. Alimony awards can be helpful, but the Courts base spousal support on numerous factors, including the ability of the other party to pay support. If your spouse is in his declining years you should be aware that the Courts are unlikely to make him pay the same amount of support after he loses his job or retires. You may be entitled to a portion of your spouse’s retirement benefits, but recent economic conditions might have left these benefits worth less than what you would need to live independently.

As a divorced woman in her 50s, you’ll need to consider all of your options carefully, whether this means completing some sort of training to boost your marketable skills or making significant adjustments in your living expenses to accommodate your lesser income. In addition to discussing this issue with your San Jose divorce lawyer, you may also want to meet with a certified financial planner to make sure your future needs will be taken care of.

What Is an Uncontested Divorce?

Couples seeking a San Jose divorce often find themselves wondering what an “uncontested divorce” means. Contrary to popular belief, an uncontested divorce is not a divorce in which there are no disagreements. It is simply a divorce in which the parties involved have managed to work out a solution to their differences without the need for costly and time consuming courtroom proceedings. It’s what most people would refer to as a “friendly” divorce or a “good” divorce.

A divorce can involve negotiations on up to four major issues: division of community and/or marital property, division of debt, custody of minor children, and payment of child and/or spousal support. If the marriage did not produce children or the couple has accumulated no significant debts and has no assets to divide, there will likely be little left to settle. However, even marriages that do require negotiation on all four of these issues can end in an uncontested divorce if the couple is willing to work together to come up with a mutualy agreeable solution to their divorce settlement.

Mediation and arbitration are becoming popular as alternatives to courtroom litigation in a divorce settlement. Attorneys are often still involved in this type of divorce, but they serve only to draw up the proper paperwork to make sure that the agreement reached will be legally binding or to provide explanations of all of the available alternatives in order to make sure that everyone feels they are being treated fairly during the negotiation process.

Most Family Courts in California now offer some form of Alternative Dispute Resolution, in an effort to reduce the burden on the Court’s trial calendars. Because that burden on the Courts is mirrored by the size of the parties’ legal bill (a trial can be time consuming to prepare for and the costs of preparing can be substantial) it is usually prudent to consider settlement of any issues that are not complex and teh other parties’ position is reasonable. At the same time, each form of ADR has its potential traps for the unwary, so it is highly advisable that you talk with a good divorce lawyer to know the rules before you just jump in. For example, in California there is a Mediation Privilege, which is good if you want the Mediation to remain confidential, but if the other party lies to you (fraud) during the Mediation, and you make a deal assuming that lie is true, then when you find out the lie later you may not be able to use the actual false statement in Court — because that statement was privileged!

If you are interested in an uncontested divorce and/or collaborative law, look for an attorney who has experience working with mediation, arbitration and/o collaborative law. An attorney specializing in family law or one who supports “child-focused” divorce would be a good choice. Every divorce attorney has his or her own unique style when it comes to practicing law. Some divorce lawyers are problem solvers while others live to make war. Picking a San Jose divorce lawyer who understands and supports the type of divorce you hope to have will increase your odds of being able to move on with your life as soon as possible.

Divorce and Your Health Insurance Coverage

When contemplating a San Jose divorce, many people fail to consider the link between divorce and health insurance coverage. In most cases, legally ending your marriage will impact your medical coverage.

If you have children with your spouse and he or she currently provides their healthcare coverage, continuing to maintain the insurance can be negotiated as part of the divorce settlement. A parent’s responsibility for a child’s medical needs is not affected by divorce. However, if your personal health insurance is through your spouse’s employer, he or she will usually not be able to continue to provide this benefit when your divorce is finalized.

As a divorced spouse, you will be eligible for COBRA (Consolidated Omnibus Budget Reconciliation Act) coverage for up to 36 months if your spouse works for a company that employs 20 or more people and you notify the health plan administrator within 60 days of your divorce. The purpose of this law is to provide you with a way to make sure that you have no gaps in your health insurance coverage. Unfortunately, COBRA coverage is very expensive. When you are covered by a spouse’s employer, the employer is most often paying a large portion of the monthly premium. Under the terms of COBRA, you must pay for this coverage entirely on your own. In fact, you will be paying 102% of the cost of the coverage.

If you can obtain health insurance through your own employer, this will almost always be a more favorable alternative than obtaining COBRA coverage. Private insurance policies purchased through a company such as Aetna, United Healthcare, Anthem/Blue Cross, or einsurance might be an option as well, depending upon your age and overall health. (No recommendation of any particular policy and/or company is made herein, rather it is suggested that you check rates and policy terms with multiple companies before you settle on one).

Under some circumstances, a former spouse can be ordered to continue to provide health insurance coverage as part of alimony. For example, an ex-wife might request continued medical coverage if she was a stay at home mother throughout the marriage and now can’t obtain affordable private health insurance due to having needed treatment for breast cancer. If you have special medical needs that affect your ability to obtain proper medical insurance coverage, make sure the San Jose divorce lawyer you select to provide your legal representation is aware of the issue.

Occassionally, the issue of health insurance can be of critical importance, particularly if you have a serious medical condition that requires expensive treatments. If you have that situation you should inform your divorce lawyer at the very beginning so that he/she can do everything possible to protect your interests.

Divorcing Your Mentally Ill Spouse

For someone contemplating a San Jose divorce, having a mentally ill spouse makes a difficult situation even more complicated. There are many different forms of mental illness, some of which are more manageable than others, but there’s no denying that a spouse who refuses to seek treatment or to take necessary medications on a regular basis can be very difficult to live with. The atmosphere of fear and anxiety that surrounds an untreated mental illness leads many people to seek divorce.

Often, the healthy spouse seeking a divorce feels guilty for being unable to handle the needs of the mentally ill spouse. Guilt is especially damaging for women. Culturally, women are socialized to be the caretakers of others and thus feel more responsible for the welfare of their spouse. But, it’s important to realize when you alone can’t provide the care a person with a serious mental illness needs. Sometimes, even though it’s very difficult, letting go is the best solution.

If your spouse has a mental illness and you are contemplating a divorce, reading self-help books on codependency might make it easier for you to better understand your situation. Seeking a therapist for yourself might be a good idea as well. It’s fine to vent to friends and family, but the perspective of a trained professional often gives you a more realistic understanding of the situation.

From a legal standpoint, having a mental illness does not automatically make a person incapable of caring for his or her children. If you have children with your spouse, keep detailed records of behaviors that might indicate your spouse won’t be able to handle caring for the children on his/her own. Get input from coaches, teachers, daycare providers, and other people in your child’s life if needed. If there is enough evidence that your spouse’s mental illness prevents him/her from making responsible parenting decisions, the court will either limit visits or order supervised visitations.

Determining how much evidence is enough evidence can be very subjective, and you should be careful to not allow the mental illness of your spouse make you go overboard. Excessive tactics, and revealing too many private details can very easily backfire and leave the Court wondering about you. This is excatly why you should secure the services of a good divorce lawyer.

If you fear that your partner might become violent when you file for divorce, you must take steps to protect your personal safety. The opposite might also be the case, so you should be on the lookout for evidence of suicidal tendencies and/or suicidal activities. Keep careful records of your spouse’s erratic behavior and ask your San Jose divorce lawyer for assistance getting a restraining order if necessary. Contact local domestic violence organizations if you need help finding a safe place to stay.

Do Grandparents Have Rights in a Divorce?

Of all the issues surrounding a San Jose divorce, the question of grandparents’ rights is one of the most complex. Grandparents, understandably, want to maintain a relationship with their grandchildren even if the marriage of the parents does not work out. Sometimes, however, a messy divorce leaves grandma and grandpa caught in the middle, or left out in the cold.

In California, some of the legal complexity can be found by comparing the Supreme Court’s Troxel holding, and its effect upon grandparent visitation, which found a fundamental right possessed by parents to the care custody and control of their children, to California’s Family Code sections, including 3102, 3103, and/or 3104. Because the scope of the fundamental right found by the US Supreme Court can be (and counsel on the other side will argue that it is) somewhat unclear at its fringes, this area of the law can require some skillful lawyering, and a proper focus. Grandparents, under the right circumstances, can get some visitation. Grandparents should remember that most Califonia Judges are, themselves, grandparents as well, and the understanding that time spent with grandparents is usually in the best interests of the children runs deep.

Usually, it is the parents of the non-custodial parent who are interested in filing for visitation rights with their grandchildren. If a non-custodial parent has limited time with the children, he or she may not be able to provide visitation as desired by the grandparents. There are also cases where the non-custodial parent might not be exercising his or her full visitation rights, thus leaving the grandparents in a tough spot if they do not have a strong relationship with the custodial parent.

As with child custody and visitation arrangements involving parents, the best interest of the child must be the deciding factor. This means that the court will try to determine what will be most beneficial for the child, not what will please the parents or grandparents.

The relationship of the grandparents with their grandchildren before the divorce is key. Every family is different, but it’s easily argued that children who visited with grandpa and grandma every week before their parents’ divorce have a more meaningful bond with their grandparents than grandchildren who only saw their grandparents once or twice a year before the divorce.

If at all possible, it is recommended that parents and grandparents work out a suitable visitation arrangement without resorting to a lengthy and complicated courtroom proceeding. Trained mediators might be useful in this circumstance, since they are able help facilitate mutually agreeable compromises between everyone that is involved. If legal action is determined to be needed, however, it is best to consult with several different San Jose lawyers before choosing representation. The issue of grandparents’ rights during divorce is a specialty area that not all California family law attorneys will be well equipped to deal with.

Can Therapy Records be Used as Evidence in a Divorce?

Everyone copes with the stress of going through a San Jose divorce in different ways. Some people exercise, others write about their feelings in a journal. Venting to a friend or family members is another common way of coping with stress, but this is often not a practical solution when going through a divorce because your friends and family may not be comfortable hearing about the intimate details of your relationship. For this reason, speaking to a neutral third party is often the preferred alternative.

Many people seek the assistance of a counselor or a therapist to help them deal with the emotional turmoil surrounding the end of their marriage. Seeking counseling services is nothing to be ashamed of. You do not need to worry that this will be seen as a sign of mental instability or a reflection of your parenting skills. There are extensive privacy regulations, and in fact the California Constitution recites in its Article I, Section 1 certain inalienable rights, including privacy. These regulations and the Constitutional right give you substantial protection regarding your medical records. Your therapy records should only be considered relevant in very specific circumstances. Your ex is not allowed to use the records as a “fishing expedition” to see if you have committed adultery or other lapses in judgment.

Absent a stipulation to let them in or you putting your own mental health at issue with the Court, it is extremely rare for counseling records to be allowed as evidence in a divorce case unless there is a compelling reason. For example, the judge might allow your records from counseling as evidence if there is reason to believe you might be abusive towards your child(ren), and you seek to present your own records to rebut those claims of abusiveness. You should be very careful about opening the door to your counseling records, since you might not be allowed to present only a part of the record, if it might be misleading to do so. This is an issue you should discuss very thoroughly with a good San Jose divorce lawyer before you act. The information admitted would have to be limited to what is relevant, and other legal and evidentiary principles may also limit the evidence for this specific purpose. Your spouse would generally not be granted open access to your records just to satisfy his or her personal curiosity; however, once you seek to admit a part of your records, if your spouse files a Motion seeking more it can be the same judge who will decide your case who could make an in camera review of those records (that is where the judge looks at the records before deciding whether they will be produced to the other party). It can be much easier to keep a closed door closed than it is to open a door just a crack, and you should view this as a slippery slope.

If you are considering seeking the assistance of a therapist, your San Jose divorce lawyer can answer many questions and/or concerns you might have about whether your records would be admissible in a court proceeding. You should also be clear with the therapist about the privacy of your records, and closely review any HIPAA documents you sign with your therapist. Many San Jose divorce attorneys can even provide referrals to qualified counselors within your local area.

Understanding How Divorce Affects Your Retirement

When contemplating a San Jose divorce, every couple has different concerns. One issue that is often overlooked, however, is the special needs of older couples who are planning to divorce. While young couples must often deal with child custody and visitation as part of their divorce settlement, older couples have to be concerned with how divorce will affect their retirement benefits.

In a community property state such as California, retirement benefits that have vested or accrued during the marriage are considered community property. This means that they may need to be divided as part of a divorce settlement. A spouse is allowed to waive rights to his or her share of retirement benefits, but, depending upon the length of the marriage and the value of the retirement benefits a waiver is not common in a long marriage. Typically, the spouse will ask for one of two things: a present-day valuation buy-out or division of the retirement benefits into two accounts.

Most experienced divorce attorneys will recommend that a spouse considering a present-day valuation buy-out enlist the services of a professional appraiser or pension actuary in order to accurately determine the value of the retirement benefits in question. Studies have found that it is very common for people to underestimate how much retirement benefits are worth. A good San Jose divorce attorney will want their client to know the value of what they are giving up before giving it up.

When dividing a retirement account, a Qualified Domestic Relations Order (QDRO) will be required to transfer the funds. This is to protect the tax advantages involved in this type of financial transaction. The retirement plan administrator can provide additional information regarding how to obtain a QDRO.

Social Security payments, compensation for military injuries, and worker’s compensation disability awards are generally not considered community property. This means they presumptively belong to the person to whom they were initially awarded. However, you can claim Social Security benefits based on your former spouse’s earning record if your marriage lasted 10 years or more and you are at least 62 years of age. You can claim based on your former spouse’s earnings even if he or she has remarried, as long as you have not remarried. Also, while the Social Security benefits themselves might be the property of your spouse, it may be possible to seek spousal support from your spouse based upon his/her retirement income being greater than yours. There are many factors a Court will consider when ordering spousal support, and you should speak with a good divorce lawyer about spousal support, and whether it might be a part of your retirement planning.

If you are not currently retired, it may be best to consider working a few additional years. Even if you don’t take attorney fees into account, divorce is usually a financial setback. The expense of managing two households is almost always greater than one. If necessary, your San Jose divorce attorney can recommend a qualified financial adviser to help you get your retirement planning back on track.

Smartphones Can Be Used as Evidence in Divorce Cases

Smartphones and Social Media grow more popular each year as a communication tool, but many people fail to realize that these innovations can provide vital evidence in a San Jose divorce. Pictures, videos, text messages, Facebook posts, and Tweets can all be used to settle arguments that would otherwise be a case of “he said – she said” in the courtroom.

You might think that proving adultery is why smartphone evidence would be relevant to a divorce case; however, California is a no fault State, and specifically excludes evidence of specific instances of misconduct. Nevertheless, you don’t have to be cheating on your spouse in order to find your smartphone the subject of a courtroom debate. Texts, Tweets, and/or Facebook posts about being frustrated with your child’s misbehavior could call attention to your parenting abilities. If you’re currently unemployed and seeking alimony, posts that indicate you spend a lot of time playing games on Facebook, or a picture of you after that long motorbike ride to Sturgis after you have claimed disbility based upon back pain, might suggest you’re not serious about finding a job. Anything relating to entertainment expenses or impulse purchases might be used to imply you’re withholding information about the state of your finances or possibly trying to hide assets.

Electronic communication can be legal to use as evidence in a divorce case. This includes communication to your spouse, and can include communication to your children or friends. Electronic communication is especially powerful as courtroom evidence because people will say things they don’t necessarily mean in the heat of the moment, and the messages can lack the contextual clues associated with other forms of communication. At the same time, the party seeking to enter the communication into evidence will surely argue that the communication shows what the other party really thinks and/or means, and that the unguarded nature of the communication makes it more credible than any guarded and/or attorney prepared testimony. It can be powerful stuff.

It appears intrinsically ironic to a San Jose divorce lawyer that the Internet was first created as a military tool, and websites like Facebook have as their primary business model the gathering of useable information (presumably for marketing purposes), yet a huge proportion of the users of these innovations seem to have utterly forgotten what they are designed for. Riots in Iran, the fall of Mubarak in Egypt, and the unrest in Syria can all be directly tied to the passing on of information by websites, including Facebook and Twitter. A competent San Jose divorce lawyer will certainly try to make use of these wonderfully effective informational weapons, and be aware if the issues raised by the Federal Stored Communications Act.

The safest course of action for anyone considering divorce would be to stop using a smartphone and stop posting on Facebook and/or Twitter completely. However, many people dislike this option, because these innovations offer great convenience for both work and play. So, wise use of technology should be your goal.

A good San Jose divorce lawyer will advise you to picture a judge standing over your shoulder whenever you are posting anything on any website or using your smartphone. Do not send photos, videos, emails, or texts that you would be embarrassed to have introduced as evidence in a courtroom. Never send anything in the heat of the moment, and always take time to reflect on how your message might be interpreted by an outside party.

Is My Prenup Valid?

Prenuptial agreements are becoming increasingly common, but couples considering a San Jose divorce should be aware that these agreements aren’t always legally binding.

A prenuptial agreement should be in writing in order to be legally enforceable. An alleged oral contract will be very hard (almost impossible) to prove in a San Jose divorce court.

Informed consent is crucial to make a prenuptial agreement enforceable. If one of the parties was pressured to sign, the agreement may not be valid. This point is not absolute, however, since merely being unhappy with the terms of the written agreement does not mean the signer was under duress. Being under the influence of drugs or alcohol at the time the agreement is signed, or not being given enough time to adequately read the premarital agreement may also be reasons why it would be considered invalid in a divorce settlement.

A prenup that is found to contain false, incomplete, or deliberately misleading information is likely to be found invalid during your divorce. Actual lying and/or misleading information could be found to be fraud, which is a strong basis to set aside the prenup, if proven. You should talk with your San Jose divorce lawyer about what facts and details to include in your prenup.

Both parties need to have independent legal representation before signing a prenup. If they have the same attorney, a conflict of interest arises. If they prepare the prenup without the help of counsel it may not meet the legal formalities required and be of no effect. These points become especially important when there is a significant difference in the earnings and assets of one partner or if one person lacks the intellectual capacity to full understand his or her legal rights.

Prenuptial agreements can’t invalidate provisions of the law. For example, a prenuptial agreement can’t specify that one party would not have to pay child support if the couple decided to divorce. However, the courts can choose to simply strike the illegal portions of the agreement and enforce any of the other provision if there are no additional problems with the prenup.

Prenups can be legal even if they divide marital assets in a way that favors one spouse over the other. But a prenup could be set aside if the court considers the discrepancy to be grossly unfair. A contract is “unconscionable” if it means that one of the parties would face extreme financial hardship while the other prospers. “Unconscionable” contracts will not be enfoprced by the courts.

If you’ve signed a prenup and want to know if it will be considered valid during your divorce, this is an issue you’ll need to bring up at your initial consultation with your San Jose divorce lawyer. You should choose legal representation with experience in this specific area of divorce law in order to make sure you have the best chance of gaining a fair settlement.