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San Jose Divorce Lawyers Blog

The Value of an Initial Consultation

Many people do not realize that most San Jose divorce lawyers will offer a free or low cost initial consultation. Choosing the right divorce lawyer for your case is absolutely critical. Special issues like child custody, alimony, or the division of business assets require an experienced professional who is willing to advocate on your behalf. Therefore, it’s in your best interests that you speak to several different attorneys before deciding who will provide your legal representation.

When preparing for an initial consultation, bring basic information about your divorce such as the name of the other party, the date of marriage, and date of separation. If you have children together, bring a list of their names and birth dates. If there is a Court Hearing approaching, or a Court Order you are concerned about, you should bring a copy of what you were served with to the interview. Tax returns, bank statements, and other documents aren’t needed until you officially choose a divorce attorney to represent you.

The best divorce lawyer is one who has the skills and experience to handle your case. Attorneys who specialize in divorce cases are better able to advocate on your behalf than those who handle all types of legal disputes, so you should ask what the lawyer does and how many divorces he or she has handled in the past.

In addition to asking about your lawyer’s educational and professional credentials, it’s a good idea to inquire if he or she will be handling your file personally. Some law firms have a very impressive attorney at the initial client interview, but after you sign the fee contract your case will be handed over to a new associate.  That new associate may or may not have the expertise you desire.

Every lawyer takes a different approach to preparing a divorce case, but it’s best if you’re as involved as possible in the process. Remember, you know the facts of your case, and you should know how the other party will think, act, and react. Do not underestimate the importance of what you know when trying to get a good result in your case. Your lawyer should be providing you with copies of documents and correspondence for your personal records, and you should read them and know what is going on in your case. Ask when you will receive updates regarding the progress of your case. If your lawyer makes you feel uncomfortable when you ask questions, consider choosing different legal representation.

Finally, the initial consultation is the time when you should try to get a feel for whether you can work with the lawyer. If you feel like the lawyer hears you and will help you, then proceed, but if you just do not click then you should consider interviewing another attorney. The initial interview is a good time to discuss the financial aspects of obtaining legal representation. Ask if a retainer is needed and how much it must be. Ask about the attorney’s hourly rate, and whether they have paralegals or secretaries that are at a lower rate. Ask which costs you must pay, like filing fees, or photocopy costs. These are standard questions that any reputable San Jose divorce attorney should be happy to answer for you.

Is My Spouse Trying to Hide Assets?

One of the most common questions a divorce lawyer in San Jose hears is how to tell if your spouse is hiding assets. Because you know your spouse better than the attorney, when you ask that question it usually means that your spouse is hiding money somewhere, but you just do not know where. You should listen to your instincts. Divorce makes people do things they wouldn’t normally consider, such as looking for ways to hide assets. If you’re in the middle of a divorce, you need to be aware of the common ways people attempt to hide assets and the steps you can take to protect yourself.

One example of a way spouses can try to hide assets is by vastly overpaying on an income tax return, then filing an amended return after the divorce is finalized in order to receive a refund. This is less painful than when they lie on the last joint tax return, and you later get a nasty letter from the Internal Revenue Service stating that you must pay up. Spouses who own a business may try to hide assets by allowing customers to defer payment until the divorce is finalized or by putting off necessary repairs in order to decrease the value of business assets, or doing the exact opposite by doing numerous repairs to consume all the available funds and thereby show inflated business expenses at the time of Dissolution.

Hiding assets during a divorce is a breach of fiduciary duty. However, a penalty only occurs if the spouse’s deceit is discovered. Therefore, it’s up to you to make sure your best interests are protected in your divorce settlement.

Any financial documents you can find will be helpful in determining if assets are being reported fairly. This includes income tax returns, credit card bills, loan statements, and bank statements. Try to find several years worth of documentation in order to accurately determine a pattern of income and expenses.

One major clue that your spouse may be attempting to hide assets is if paperwork that was once delivered to your home is no longer showing up. Another clue is if you had access to records, but that access has been taken away, as when your name is taken off of a joint account, or the lock is changed on the file cabinet that used to hold the business records. If your credit card statements are now delivered to your spouse’s workplace instead of coming directly to your home, this is a significant red flag that he or she may be attempting to hide something.

If you are concerned your spouse may be trying to hide assets, discuss this issue with a good divorce attorney in California. He or she can provide advice specific to your situation, as well as helping you to determine if it may be necessary to hire a forensic accountant for your divorce proceedings.

Who Claims the Child Tax Credit

One thing many couples do not consider when contemplating a Santa Clara divorce is the tax implications of ending their marriage. However, this is particularly important when you have children with your former spouse. The child tax credit allows you to reduce the amount of your taxable income by up to $1,000 for each child under the age of 17. The child tax credit can offer even more savings if you also qualify for the Earned Income Tax Credit (EITC) given to low income taxpayers.

The IRS considers a parent someone who is related to a child by birth or adoption. The parent claiming the tax credit must be listed on the child’s birth certificate. This is an important factor to consider if you were not married at the time of the child’s birth.

Typically, child tax credits are awarded to the parent who cares for the child the majority of the year. For example, if a child lived at his mother’s house for 265 days and his father’s house for 100 days, the mother would be the parent entitled to have the child tax credit. (When counting days of residency, absences due to camps or sleepovers are added to the total of the parent who would have otherwise been caring for the child.)

If parents have joint custody and spend equal amounts of time caring for their children, the parent with the higher income is presumptively entitled to the child tax credit. For example, if the mother has the child in her care for 183 days and earns $50,000 a year and the father cares for the child 182 days and earns $80,000 a year, the father would be entitled to claim the tax credit.

If you would like to work out an arrangement that differs from the IRS rules, you can have this specified in your divorce degree. For example, some parents choose to take turns claiming their children and any available tax credits. A non-custodial parent may be allowed to claim the child on his or her tax return after submitting Form 8332, titled “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent.” A Santa Clara divorce lawyer can provide guidance in regards to this issue.

Options for Enforcing a Child Support Order

Child support payments are intended to make sure both parents continue to share responsibility for the financial needs of their children. Unfortunately, in a contested San Jose divorce, the parent who is ordered to make child support payments often attempts to withhold payments to “punish” his or her ex. This leaves the custodial parent scrambling to make ends meet and unfairly burdens the children.

If your ex has been ordered to pay child support and is missing payments or only paying part of what is owed, it is best to contact them, in writing, and make clear that they are not complying with the current support order. The Courts prefer to see that you attempted to resolve the problem informally before filing a Motion to enforce the Order. If the problem is not fixed quickly, then you should pursue legal action without delay. If legal action is not pursued in a timely fashion, a custodial parent risks losing his or her ability to collect, since the other parent might move to somewhere you cannot find him/her, lose their job, or die. Child support obligations are not dischargeable in bankruptcy, but that Court Order saying you are owed funds is only good when there are locatable funds to collect.

If you’re concerned about attorney’s fees, the court allows custodial parents to request that non-custodial parents contribute to the legal fees incurred to collect the support, but that topic can be very complex and fact based.  You should ask your San Jose divorce lawyer about whether the other party can be made to pay part or all of your legal fees associated with enforcing the child support order.

Wage assignment is usually the best and most effective way to make sure a child support order is enforced. A judgment lien on real property or a writ of execution may be considered as well. Sometimes a Notice of Delinquency, advising that a California Court can impose a penaly of 6% per month (72% maximum) for any support payments that are more than 30 days overdue will shake the non-payer into making payment.

Depending upon the circumstances, a non-custodial parent can have his or her driver’s license or professional license suspended for failure to pay child support. Occassionally the Court might even send the willful non-payer to jail for Contempt of Court; however, since these suspensions can impact the non-custodial parent’s ability to earn a living, they may cause him or her to fall even further behind on support payments.

Many parents make the mistaken assumption that child support enforcement can only be effective if the non-custodial parent has not moved out of state. If your ex has moved to another state since your divorce and you can prove that the failure to pay child support is willful and deliberate, he or she can be charged with a federal crime under the Child Support Recovery Act of 1992. This carries a sentence of monetary fines and up to six months in prison for the first offense.

As a parent, it is your responsibility to be an advocate for your child. If your ex is not carrying out his or her legal duty to pay required child support payments, a San Jose divorce attorney can help you decide the most appropriate course of action.


Understanding Child Custody Arrangements

One of the most common questions San Jose divorce lawyers receive is how the courts determine custody arrangements for parents of minor children. Although each case is unique, there are some general guidelines you should be aware of.

Physical custody refers to the right to have a child live with you, while legal custody refers to the right to make decisions about medical care, schooling, religious education, and other important parenting issues. Parents who share physical custody often share legal custody, but parents who share legal custody may or may not share physical custody of their children.

In most cases, courts prefer to award joint physical and legal custody after divorce. Unless one parent is deemed to be unfit or abusive, the courts believe it is best for children to have both parents actively involved in their lives. Even when one parent is awarded sole physical custody, the other parent will likely receive some form of visitation to allow him or her to continue to be involved in the children’s lives. (If there are questions as to whether the parent is a suitable caretaker for the children, the court can order that visitation be supervised by a social worker or other trained professional.)

The main issue to consider when discussing joint physical and joint legal custody is consistency. These types of arrangements are only effective if both parents can agree to be civil and respectful of their ex-spouse’s thoughts and feelings. For example, it would be inappropriate to buy your son a BB gun for his birthday if you know that your ex is adamantly opposed to violent toys of any form. On a similar note, letting your 15-year-old daughter go to the movies unsupervised with a boy from school would be inappropriate if you had previously agreed that she would not be allowed to date until she was 16. Moving back and forth between two homes can be very stressful for children of divorce, so it’s your responsibility as a parent to help make sure both homes have the same level of consistency and supervision.

It is a common misconception that older children are allowed to choose which parent they want to live with after a divorce. Teenagers may be allowed to testify as to their preferred living arrangements, but ultimately custody decisions will be left up to the judge. If you have questions as to the possible impact of your child’s preferences on the custody arrangements, ask to discuss this issue with your San Jose divorce lawyer.