San Jose Divorce Lawyers Blog

You Need a Prenup, Regardless of Your Current Earnings

Many people think that they don’t need a prenup unless they are the higher earning spouse, but Bay Area divorce lawyers know that this is not the case. It is impossible to predict what the future holds. A man who vastly out-earns his wife when they walk down the aisle may find that she ends up being the breadwinner when he is unexpectedly laid off. A wife who earns more when the couple marries may decide she wants to take time off to stay at home with her children, thus making her financially dependent on her spouse.

The recent divorce of Ashton Kutcher and Demi Moore provides the perfect example of how role reversals can happen in a marriage. Demi earned more when the couple tied the knot, but Kutcher’s career has taken off in recent years while hers remains at a standstill. Estimates place Kutcher’s earnings at $12 to $13 million per year, compared to $5 million for Moore. Additionally, Kutcher is said to have made several smart investments in tech start-up companies and has a $20 million per year contract for his role on Two and a Half Men. Since California is a community property state and the couple does not have a prenup, Moore is presumptively entitled to 50% of whatever Kutcher made during the marriage.

An invalid prenup is just another piece of paper. Experienced divorce lawyers will strongly recommend that both parties have legal counsel when drafting and negotiating the prenup. Having just one attorney handle the prenup increases the chances that the prenup will be no good. There is an inherent conflict of interest between the soon to be spouses, and an attorney generally cannot represent two competing parties, who each have exactly opposite interests, at the same time. Additionally, there can’t be any coercion involved. A prenup that is not signed willingly could be set aside. Waiting until the last minute (less than seven days before the wedding) to ask your future spouse to sign the agreement may create a legal presumption that the prenup is invalid.

If you have questions about whether or not your prenup is enforceable, it’s best to speak to a qualified divorce attorney in San Jose. There are many variables to consider when challenging a prenup, so it’s crucial to have an experienced lawyer on your side.

How Does Having Joint Custody Affect Child Support?

Among couples seeking information about San Jose child support laws, it is a common misconception that joint custody of children from the marriage means that neither parent is liable for child support payments. There are several factors that determine whether a parent needs to pay child support, so it is quite possible to share custody of the children and still have one parent paying child support.

Consider the case of President and owner of In-N-Out Burger, Lynsi Torres. Ms. Torres is the youngest female billionaire in the United States. Even though she has joint custody with her ex-husband, Richard Martinez, she has to pay $19,000 a month in child support for her eight-year-old twins. She also pays for the cost of the private school for the children.

Ms. Torres pays child support because she has a higher income than her ex-husband, so he is less able to provide for the financial needs of the children even though they share custody. The fact that she inherited her money, and her money is her separate property that her ex husband could not get in the divorce does not stop the Court from considering her income when it sets child support. If they each had salaries that were roughly the same, then it is possible that neither parent would be responsible for child support.

Another common situation resulting in confusion over child support liability is when parents are listed as having joint custody, but one parent spends 60% of the time with the child and the other has the child for 40% of the time. Even if your incomes are equal, the parent spending less time with the child may owe child support.

The two primary factors driving the calculation of child support in California are the incomes of the parents, and the amount of time each parent spends with the child(ren). There are other factors, like whether there are any other children that must be supported, and/or whether either parent has assets that might not be earning a return. An experienced attorney can help you estimate what child support should be if you provide the right information.

If you have joint custody and there is a significant earning discrepancy between you and your ex, it is crucial that you contact an experienced San Jose child support attorney to learn more about how your situation affects child support liability. Without professional legal assistance, you could easily end up paying more child support than necessary or find yourself struggling to provide for your children without the support payments you are legally entitled to receive.

Divorcing an Alcoholic Spouse

Several studies have suggested that alcoholism is one of the more common reasons people file for a Santa Clara County divorce. From a legal perspective, however, you might think that alcohol abuse theoretically shouldn’t be an issue unless minor children are involved and/or the divorcing spouses are arguing over whether the costs of that DUI legal defense was for the benefit of the community and should be split 50/50 or assigned entirely to the party who got the DUI (or, worse, if you show up in Court drunk, and the Judge finds you in Contempt.) Because alcohol abuse is such a common cause of divorce, any evidence that a party has this problem can effect the way a Judge might rule on many other factors. It is a basic rule of law, not written in any Code or Statute, that if the Judge does not like you things just seem to not go well in Court. No one can read the Judge’s mind to know why any particular decision is made, and in fact, if we knew that a Judge ruled against a party due to that parties’ abuse of alcohol — if the other factors were about 50/50 and the matter could really have gone either way — then no Appeals Court would be likely to disturb what they would characterize as an exercise of the Judge’s discretion.

If you have an alcohol problem, and are going through a divorce, an experienced divorce attorney will instruct you to never show up in Court drunk, and do everything you can to stop drinking, at least until the divorce Judgment is entered. Whether your alcohol abuse is technically relevant or not under the California Evidence Code is an argument that you may have already lost as soon as you must make it. It is the case; however, that many Judges in Santa Clara County express support from the bench when they hear that a party is taking steps to get free from alcohol addiction.

If you are the sober party, and are getting a divorce from the one who drinks, then you should consider that in long term relationships where only one party drinks there can be co-dependency type issues that should be addressed by the sober spouse. If you are suffering from co-dependency issues it can make it harder to reach sound decisions during the divorce process. A good divorce attorney will help to steady you, but you cannot afford to litigate when your decisions may be clouded by irrational thoughts.

If there is reason to believe that one spouse drinks to excess and that this drinking affects his or her parenting skills, this will be taken into consideration when the Judge is deciding custody and visitation.

Unfortunately, you can’t just accuse your spouse of having a drinking problem when you file for divorce. Many people marry their match, so the Judge will want to see proof that you do not also have a problem with alcohol abuse before using this as a reason to limit custody or visitation rights.

In many marriages, the non-alcoholic spouse covers up the alcoholic spouse’s drinking problem. He or she disposes of the empty bottles, makes excuses when the alcoholic spouse can’t attend a family function because of a hangover, and arranges for the children to be out of the home when mom or dad has been drinking. If you’ve decided that you want to file for divorce, the first thing you need to do is stop covering up evidence of your spouse’s drinking problem. Let the neighbors see him or her stumbling into the house drunk or take pictures of that huge pile of beer bottles or cans as they are taken for recycling. With some people bragging about what they do on Social Media a simple printout of what your spouse has told the whole world could be evidence. The more evidence you can collect, the stronger your case will be.

It is also a good idea to have a mental health professional see you and your children for an evaluation. Even if you’ve tried to protect your children from your spouse’s drinking, they may have already been affected more than you realize. A trained therapist can also testify in court as to whether or not your spouse’s parenting time should be limited.

When meeting with your Bay Area divorce lawyer, make sure that you are being completely honest about your spouse’s drinking problem. Your lawyer needs to know all of the facts in order to prepare a case that protects the best interests of both you and your children.

Residency vs. Domicile: Where Do I File for Divorce?

Bay Area divorce lawyers want their clients to know that you must live in the state in which you file for divorce. You are not allowed to look at each state’s divorce laws, then pick whatever state you think is most likely to give you a favorable settlement. However, your spouse does not have to be a resident of the state that you file for divorce in. If you moved to California after separating from your spouse, for example, you could file for divorce after establishing residency even if your spouse still lives in another state.

The period for establishing residency varies greatly from state to state. Nevada requires six weeks to establish residency, while it takes one year to establish residency in Maryland. To further complicate the situation, some states will say that a spouse has be domiciled in the state. Domicile is a tougher standard to prove than residency. Domicile requires a permanent home that you intended to stay in. Residency merely requires that you be currently present in a particular location.

Technically speaking, a person can have several residences. However, a person can only have one domicile. For example, someone who travels regularly on business and owns a vacation home may be a resident of California, Florida, Arizona, and Indiana. But, if his mail is sent to his permanent home in California and this is where he votes and has his driver’s license, only California would be considered his domicile.

If you have children with your spouse, you should be aware that the home state of the child will have custody jurisdiction unless your divorce decree states otherwise. If you or your spouse has a retirement or pension plan, the state that has jurisdiction over the person holding the plan is responsible for determining the division of the asset.

If you have questions about how residency affects your divorce, it is best to contact a qualified San Jose divorce attorney.

How to Divorce a Spouse Who Is Mentally Incompetent

Individuals interested in filing for a Santa Clara county divorce from a mentally incompetent spouse have a few special issues to consider as they are going through the process of legally ending their marriage.

While every married couple hopes to live happily ever after, that doesn’t always happen. Sometimes, circumstances change drastically. Your spouse may be in a car accident and suffer from a traumatic brain injury that requires full time hospital care. Or your spouse may suffer from dementia and no longer be able to recognize you. This can cause great stress on any marriage, which is why it’s common for people with a mentally incompetent spouse to consider filing for divorce.

Normally, when a person is mentally not able to make decisions for him or herself, a guardian is appointed. The spouse is the first choice for this job, but another guardian has to be appointed if you are filing for divorce because of the obvious conflict of interest. This could be a close family member or friend, but the court can also appoint a guardian if no one is up to the task.

Once a guardian has been appointed, the divorce can proceed much as it would in any other case. If the guardian is not an attorney, he or she will need to hire legal representation to help with the settlement. The role of the guardian will be to make the decisions that your spouse would be making if he or she was able to fully understand the divorce proceedings.

If your spouse is receiving disability benefits, the courts will need to determine if the benefits are separate property or marital property. There are multiple factors used to determine the status of disability benefits, so you will need to speak with your attorney for more information regarding this matter.

Another important issue to consider when divorcing a spouse who has been declared mentally incompetent is alimony payments. If your spouse is unable to work and you have the resources to help pay for his or her living expenses, you may be required to pay spousal support. An experienced Bay Area family law attorney can provide additional information.

What Goes on in a Divorce Mediation Session?

If you’re planning on using a mediator for your divorce in San Jose, you may be curious as to what a typical mediation session is like.

A divorce mediator is and/or should be someone who has been trained to act as a neutral third party. The mediator is supposed to be objective and not “take sides” during the session. His or her job is to make sure that both spouses have a chance to speak, even if one person is naturally less assertive than the other.

There are two basic rules at a divorce mediation session, although additional ground rules can be proposed if necessary. First, only one person is allowed to speak at a time. Mediation is about respectfully reaching a solution to the legal ending of your marriage. Interrupting is both rude and disrespectful. Second, there is no name calling. Mediation is not the place to call your ex a lying, cheating scumbag or to say that you wish he or she would just crawl in a hole and die. Even if you’re angry and upset, you need to find a way to keep your temper in check.

If you think that you and your spouse can follow the above rules then you might be a decent candidate for mediation. The length of time needed for mediation to be complete will vary according to the issues that need to be settled and how greatly the parties disagree. However, it’s typical for each mediation session to last two to three hours, and a couple to require two or three sessions to complete the process. If it appears that the couple is going to be unable to reach an agreement after about twelve hours of mediation services, the mediator might recommend heading to Court to finalize the settlement.

Even if your case does not need to go back to Court to fight over things you can benefit from consulting outside the mediation with a good and competent divorce lawyer. A couple of hours spent with your own legal counsel to review a proposed agreement, before you sign it, can help you avoid making a big mistake. Once the deal is in writing it may be difficult to undo, but if it is a good and fair deal, then you should know that (and probably sign it).

Mediation is only a waste if you get nowhere, and it is only a tragedy if you made a bad agreement. Mediation has the potential to be cheaper than a traditional contested divorce, because there is one mediator, not two divorce lawyers (hiring one legal expert can be cheaper than hiring two).

If the mediation fails, or if you come out of mediation with an incomplete agreement both parties will generally retain the same legal rights as they would have had before the mediation process began, excepting only the effects of any agreements they made in mediation and reduced to a written and signed Court Order.

Divorce Tips for Men

Many men seeking a San Jose divorce feel like the courts are biased against men. They worry about losing the family home and getting stuck with a huge alimony payment while their ex ends up with a bigger chunk of the marital assets. However, there are some steps men can take to make sure they get a fair shake in the settlement process.

First, you do not need to move out of the marital home immediately. Living together while getting a divorce can be stressful, but it’s much more cost effective than supporting two households. You have a legal right to live in the marital home until a judge says otherwise. It’s also important to remain in the home if you think this is an asset you want in the divorce settlement.

Second, keep your temper in check. Do not yell at your wife or behave in a manner that could be perceived as physically threatening. Even if you would never be abusive towards your wife, you do not not want to provide her with any ammunition for a restraining order that could get you kicked out of your home. If you need to blow off some steam, plan a night out with your friends or head to the gym for an intense workout.

Finally, remember that it’s important to be discrete about your new single life. You have a right to date if you wish, but it’s not smart to flaunt your relationship. Do not post pictures of you partying with your new girlfriend on your Facebook page or give her lavish gifts that the court could see as a misappropriation of martial assets. If you have children, do not introduce them to a new partner until your divorce is final. A living situation that is seen as “unstable” could possibly have a negative impact in terms of child custody.

If you’ve never had the need for a lawyer until now, you may be worried about the cost of hiring a Bay Area divorce lawyer. Your concern is understandable, but it’s smart to get the best possible legal representation that you can afford. A lawyer who can advocate on your behalf can potentially save you thousands of dollars by negotiating a more favorable settlement.

Can You Date Before Your Divorce Is Finalized?

Should you start dating before finalizing your San Jose divorce? There is no one right way to answer this question. Some people do start dating before their divorce is finalized, but there are compelling reasons to wait as well. It’s up to you to make an informed decision regarding this aspect of your case.

Legally, there is no reason you can’t date before your divorce is finalized. California is a no-fault divorce State, so dating won’t lead to you being accused of adultery or finding your new lover named in your divorce papers. The financial resolution you get from the court, after a trial, should be exactly the same as what you’d receive if you weren’t dating.

However, if your ex is feeling hurt and rejected, news that you’re dating again will almost always make him or her less likely to agree to a settlement. Dragging on a divorce case out of simple spite is not uncommon. This can be time consuming and expensive, which is a very good reason for either avoiding dating until your divorce is finalized or being very discreet about your new relationship.

If you have children with your spouse, you may want to postpone dating for their sake. Even if they are old enough to understand that their parents have been unhappy for quite some time, most children still experience divorce as a stressful life event. Introducing your new partner too quickly can complicate the situation even further, which may make it more likely your child will have trouble sleeping, start acting out in school, or exhibit other signs of emotional distress. Allowing your children the time they need to process the change in their family structure will help ensure that the divorce does not have a long term negative impact on your relationship with them.

If you think that you married the wrong person, then rushing into a new dating relationship, while under the stress of unraveling the old, failed relationship, will be a lot like pouring gasoline on a fire — in an effort to put the fire out. It almost always fails to work out well. It is so common as to be streotypical that these dating while still in divorce relationships see the parties dating practically carbon copies of their soon to be ex spouse. If your ex was a mistake, then why are you dating his/her clone? You should be careful.

Whenever you have questions about what behavior is appropriate when filing for divorce, it’s best to ask your attorney. A qualified divorce lawyer in California can explain the legal aspects of your case and offer tips to help make sure you get the most favorable settlement.

Defining Community Property

If you’re seeking a divorce in San Jose, it’s very likely you are interested in California’s laws covering the division of property. Next to issues involving child custody, this is typically the most hotly debated aspect of a divorce settlement.

California, like Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, is a community property state. This means that marital assets are either the equal property of both spouses or the separate property of just one individual. Community property laws in the United States are said to have been inherited from Mexico’s ganancial community system, which itself was derived from Spanish law.

California’s community property law states that the money each spouse earns during the marriage, as well as items purchased with those earnings, is considered community property. It does not matter if one spouse earns significantly more than the other; the courts consider the marital relationship an equal partnership.

Separate property includes gifts, inheritances, or personal injury awards received by just one spouse. The proceeds of a pension that vested before the couple married would also be considered separate property. A business owned by one spouse before the marriage remains separate property, but could be considered partial community property if either spouse worked at the business while they were married.

At first glance, it appears that determining whether something is community property or separate property should be relatively simple. However, trouble begins when separate property mixes with community property during the marriage through means such as a joint bank account or if one spouse uses the proceeds of an inheritance to purchase the family home. Separate property that mixes with community property may become classified as partially or entirely community property, depending upon the exact circumstances. Sometimes you might need to hire an expert accountant to trace the funds, and testify in Court about the source of the funds.

Since many assets acquired during your marriage are unlikely to be sold, keep in mind that the judge will award parties assets of equal cash value. If there is a specific item you are hoping to receive, you should discuss this issue with your San Jose divorce lawyer. If you have children from your marriage, however, it is most likely the parent with primary custody will be awarded the family home, with the other party receiving cash or other property to equalize the distribution.

The Law Offices of Thomas Chase Stutzman a Professional Corporation

Category Archives: Divorce