San Jose Divorce Lawyers Blog

Student Loans and Divorc

Couples getting a San Jose divorce usually assume that student loans are the responsibility of the person who incurred the debt. However, this is not necessarily the case.

Student loans taken out before a couple is married are generally the responsibility of the person who incurred the debt. Potential problems and/or complexities can occur if one spouse was a student during the time of the marriage and/or if payment(s) on the loan(s) are made using community property funds. (This blog posting is limited to Family Law issues, and will not, for instance, delve into the nuances of the bankruptcy code and/or the likelihood that those student loans cannot be discharged in bankruptcy).

At least several legal principles could be considered in order to sort out what to do with student loans in a divorce: (A) Debt used to pay living expenses during the marriage is generally a marital/community obligation, whether it’s in the form of credit card debt or student loan debt; (B) the time the debt is incurred can create a presumption regarding whether it is separate or community debt (SEE FC 760, 770, 771); (C) separate debts are generally assigned to the party who incurred them (SEE FC 2625); (D) but student loans are generally assigned (FC 2627) based upon the rules set forth in Family Code 2641; and (E) the assigning of these debts could be considered by the Court when it sets any spousal support Order (SEE FC 4320(b) & (e) and SEE FC 2641(d)). So if your spouse took out student loans and you used some of the money to pay for your rent and to buy food, a portion of the student loan likely is a marital debt that both spouses are liable for.

Like any other form of investment, not all student loans generate the same results. Family Code 2641 allows the marital/community estate to be reimbursed for the payment of loan(s) (or the direct payment of tuition, etc.) that substantially enhances the earning capacity of a party (SEE AGAIN FC 2641(b)(1)). That statutory language could mean that loans taken out and/or community funds spent on a great art, dancing, photography, or music course that never results in any job or pay increase might not get a reimbursement. Conversely, community funds spent to get a technical certificate that results in an immediate new job with better pay could stand a much better chance of getting a reimbursement. The nuances in between these extremes is where a good divorce lawyer does their work, characterizing that education as either ultra valuable (if counsel represents the party seeking reimbursement) or describing it as a failed investment that yielded no benefits (if counsel represents the party who got the education). Counsel works best with these type of issues when there are good written records to support the chosen theme.

If both spouses attended school during the marriage, the court will take into account the efforts of one spouse to support the other when deciding how to divide up the student loan debt. For example, if the wife borrowed money to pay for school and living expenses, but later worked to put her husband through school so he would not need any student loans, the court could set off a portion of the later community payments towards husband’s education against wife student loan debt(s) (SEE FC 2641(c)(2)).

If your divorce involves a significant amount of student loan debt, it is essential to contact a qualified Bay Area divorce lawyer who can advise you on the best strategy for obtaining a fair divorce settlement, and which written records you should try to locate to prove up your claim(s). There are many factors involved in dividing debts during a divorce, so it’s crucial to have someone on your side who understands the finer points of California divorce law.

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.

Is There a Formula for Awarding Alimony?

Although California has a specific formula used to calculate child support, the guidelines for awarding alimony in a San Jose divorce are more complex. Alimony, also known as spousal support, is broken into temporary spousal support (which might be calculated using a mathematical formula) and permanent (post Judgment) support, which is awarded based on multiple different factors. These factors include (but are not limited to):

The earning capacity of each spouse
Whether or not the person requesting alimony contributed to the degrees or professional training of the person being asked to pay support
The ability of the supporting party to provide the support
The need of the party seeking support for the support
If the divorcing couple has children together, whether or not the spouse requesting alimony can find employment without interfering with the best interests of the children
The age and health of both spouses
The standard of living established during the marriage
Any history of Domestic Violence
The assets and obligations of each party

The duration of the marriage is a factor in determining how long a spouse will be eligible for alimony. If the marriage lasted less than 10 years, there is a legal p[resumption that the spouse receiving alimony will get spousal support for no more than half the length of the marriage. If the marriage lasted more than 10 years, the court may not set a specified length for how long the spouse receiving alimony is entitled to spousal support. The burden is placed on the paying spouse to prove that support is no longer needed, but there is still the expectation that the spouse receiving alimony will eventually be self supporting. Unless there are extenuating and/or unusual circumstances, courts will not order lifetime spousal support, and the current trend seems to be to reduce long term support.

Gender is not mentioned in the Family Code as a factor in determining alimony. Women were traditionally the ones award spousal support, and the unstated gender bias remains, as many men feel ashamed to ask for spousal support, but women do not feel ashamed and regularly request it. A growing number of men have been granted alimony in recent years.

If Domestic Violence was the reason for the divorce, this can override other factors. For example, a high earning woman who would otherwise be expected to pay alimony may not be liable for spousal support if she is leaving the marriage because of domestic violence. This has undoubtedly resulted in countless fraudulent domestic violence claims being made, so if you are a man, watch out! Life, and the law, are not fair.

Since the decision to award spousal support is based on a number of complex factors, it is best to consult an experienced divorce lawyer in San Jose with any questions that you may have regarding alimony and your divorce.

Understanding Visitation Rights

Although joint custody arrangements are becoming more common each year, most Santa Clara divorces end with one parent being awarded primary physical custody of the child and the other parent being awarded visitation.

Visitation is a factor in nearly all custody arrangements. Visitation is normally only denied if the Court determines it not to be in the child’s best interests. If there are concerns about the non-custodial parent’s capacity to properly care for the child because of mental illness, drug use, criminal activity, or other similar problems, supervised visitation is regularly ordered instead of visitation rights being taken away completely.

A child custody and visitation order is a Court order. Intentionally violating the terms of that order can result in civil penalties, criminal penalties, or both. The child should be picked up on time and returned according to the agreed upon schedule. However, both custodial and non-custodial parents are encouraged to be flexible with visitation to allow the child to maintain a relationship with his or her other parent and extended family. For example, a custodial parent who allows visitation to begin early Friday evening instead of on Saturday morning so the child can attend Grandma’s 80th birthday party will be seen by the Court as a parent who is committed to putting the child’s needs first.

The custodial parent is responsible for preparing the child for visitation. The child’s wishes may be considered by the Court, depending upon the child’s age and maturity level, but the Court can still grant visitation even if the child does not wish to see the non-custodial parent. Unfortunately, it is common for young children to not want visitation, because they are being unduly influenced by their custodial parent. This is commonly referred to as alienation, and while it is rampant, the Courts generally seem to require substantial evidence of alienation before they will change a visitation order on that basis. A child custody evaluation report stating that there is alienation will usually suffice, but the mere testimony of a parent that the other parent is alienating the child generally will not suffice.

Visitation and child support are two separate issues in the eyes of the Court. The custodial parent is not allowed to withhold visitation from the non-custodial parent as punishment for failure to pay child support. The time each parent has with the child is directly relevant to the calculation of child support, and it is a fiction to think that parents who are fighting over every dime in a Dissolution are not aware of the effect of the timeshare on the child support calculation. Nevertheless, stating that you want to see your child more so you can pay less child support is almost certain to result in the Court awarding more time, and more child support, to the other parent.

If you have questions regarding visitation rights or want to modify a current visitation arrangement, you should contact a qualified Bay Area divorce lawyer for additional information.

Is My Prenup Enforceable?

One of the most common misconception regarding divorce laws in San Jose is that a prenuptial agreement will be followed exactly when a couple divorces. That notary stamp on the written agreement signed by both parties is viewed as a sort of guarantee that the agreement is unshakeable, but when there are not competent attorneys on both sides holes can be found. A prenup drafted by both parties on their own, and without the assistance of counsel, will often not be enforceable. Signing a valid prenuptial agreement, where both sides had the assisitance of counsel, can provide valuable legal protection at a fraction of the cost of later litigating the issues covered by the prenup.

According to California Family Code, a prenuptial agreement can discuss the following:

The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
The ownership rights in and disposition of the death benefit from a life insurance policy.
The choice of law governing the construction of the agreement.
Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Child custody, child visitation, and child support are not on the above list. The child(ren) are often not even born yet, and it should be understood that a prenuptial agreement will generally not work for these issues. A spousal support waiver can be included in a prenup, and if there are attorneys on both sides during the negotiating of the agreement the provisions will normally be enforceable; however, if the agreement appears to be unconsionable at the time of enforcement (usually the time you most would want to enforce it) the court can still order support. An agreement to do anything illegal is generally not enforceable in California, and prenups are no exception to this rule. In contrast, a properly drafted prenup to keep the property you owned before the marriage as your separate property after divorce will generally be enforceable.

Prenuptial agreements can be invalidated if there is evidence one party was forced to sign under duress and/or undue infuence. This could mean threats of physical harm or just emotional coercion. A prenuptial agreement is also unenforceable if someone lacks the mental capacity to understand the agreement, such as if he or she is intoxicated when signing or if the agreement is in English but a party reads only Mandarin. Another reason prenuptial agreements can get thrown out is if a lawyer did not review the final agreement, or if they did review the agreement but not long enough before the marriage.

If you want to draft up a valid and enforceable prenuptial agreement you should contact an experienced divorce attorney without delay. A good family law attorney can answer your questions as to the enforceability of your prenup. Research into this issue can occassionally be complicated, so it is best to give your attorney plenty of time to prepare your case and/or draft the prenup.

Children, Passports and Divorce

In our increasingly global society, many parents going through a San Jose divorce have concerns about their children being taken out of the country when child custody issues are being decided. This is problematic because variations in laws among different countries can make it difficult to retrieve a child once he or she has left the United States. Some nations have signed the Hague Convention, some have not signed, and some that have signed seem to read the convention differently than it is read in California.

Once issued, passports for children under sixteen years of age are valid for five years. Both parents must consent for a passport to be issued unless the applying parent has documents proving his or her sole authority to obtain a passport for the child. This could include having sole custody, possessing a court order allowing the parent to travel with the child, proof of the termination of the other parent’s parental rights, having a written statement that the other parent agrees to issuance or is unavailable to consent, or a compelling humanitarian reason relating to the welfare of the child. Grandparents are not allowed to apply for the passport of a child unless they have a document of guardianship or written authority to comply with the Two-Parent Consent Law.

California courts have the authority to order parents to surrender a child’s passport to the court or the court designee. Passports can be legally held as long as necessary if there is reason to belive a parent may unlawfully try to remove the minor child from the United States, or the State of California. If a court orders that a minor’s passport be withheld, this will be reported to the Office of Children’s Issues to prevent unauthorized attempts to obtain a new passport for the child. Parents can also have the child’s name added to the Children’s Passport Issuance Alert Program (CPIAP) lookout system. If the child’s name is recorded in this system, the Department of State will notify the parent that a passport application is being filed for the child.

In California, many counties have child abduction prevention units which can be helpful. If you have reason to believe your ex might try to flee the country with your child, you should discuss this issue with your San Jose divorce attorney immediately. Depending upon the circumstances and evidence to support the fear of abduction, he or she can advise you of what steps should be taken to ensure your child’s safety.

Recognizing the Signs of Depression After Divorce

After a Santa Clara divorce, it’s normal to need some time before you feel ready to “move on” with your life. But it’s important to realize the difference between a normal grieving process and a situation that could be more serious.

If you don’t feel ready to jump right into the dating pool immediately, this is perfectly normal. It’s OK to want to be alone for a bit and give yourself some time to recover before worrying about how to build a new relationship.

Feeling SAD, STRESSED, HURTING, or ANGRY occasionally is normal, but you should be concerned if you’re so upset that you’re having trouble functioning at work or finding the strength to be an effective parent to your child.

If you’re not EATING or SLEEPING normally, this could be a sign of DEPRESSION. LOSS OF INTEREST in hobbies or spending time with your friends is another common warning sign of DEPRESSION.

If you’re engaging in destructive behaviors or thinking of physically harming yourself, you need immediate attention. Please call the National Suicide Prevention Lifeline at 1-800-273-TALK (8255) for free, confidential support 24/7.

Many times, people are reluctant to seek help for mental health concerns, because they do not want to use prescription medication to deal with their problems. The concern that you might be OVER-DIAGNOSED and/or a victim of DISEASE MONGERING and a small problem might be treated as something more serious is a completely valid and creditable concern, since if you use medication, someone makes a PROFIT FROM YOUR SUFFERING. For purposes of this attorney blog (written by an attorney, NOT a psychiatrist) I suggest that you discuss these issues with trusted members of your friends and family before you see any mental health professional. If the people who know you well think there are issues that should be dealt with, then seek some help.

I often take a walk when I feel stressed, and the simple WALK regularly makes me feel better. (That walking works for me does not guarantee that it will have the same effects for you, but if you feel down, why not try it?)

More good news is that there are lots of therapists and counselors who are willing to try therapeutic approaches that don’t involve medication. If you are upfront about your feelings regarding medication, you should have no trouble finding a therapist who can help you start to feel more like your old self.

In times of crisis, like during or after a divorce, remember that there is no shame in asking for assistance. Seeing a counselor or therapist after divorce is no different than enlisting the help of an expereinced DIVORCE LAWYER to act as your legal advocate. They have different roles in the divorce process, but both can act as valuable RESOURCES for helping you to move forward with the next stage of your life.

Gender Differences in Coping with Divorce

There are significant differences in how men and women approach the various aspects of their lives, including how they handle moving on after a San Jose divorce.

Despite the growing prevalence of two income households, most married women still assume the greater role when it comes to managing social networks and support systems. This can create extra stress that leads to unhappiness when a woman feels she is “too busy” for leisure activities, but having this source of emotional support to lean on is very valuable after a divorce.

Men, in comparison, tend to be much better than women when it comes to taking time for hobbies and special interests. They don’t feel guilty when they spend a day watching football instead of doing household chores. But, men are much more reluctant to put in the necessary effort required to develop strong sources of emotional support. This means that after a divorce they are often left without a “sounding board” for their feelings. They may become isolated and withdrawn, making it harder to move on with their lives.

What do the findings of psychologists and divorce therapists mean for you after filing for divorce in San Jose? It depends on your gender.

If you’re a woman, take a cue from the “typical man” and spend time developing the hobbies and special interests you felt you didn’t have enough time to pursue when you were married. You’ll feel better about this new stage of life and possibly meet some single friends who can expand your social circle.

If you’re a man, take a cue from the “typical woman” and devote yourself to manufacturing stronger relationships with your friends and family members. Instead of keeping your feelings to yourself, make a conscious effort to find someone to confide in.

Gender differences in coping strategies refer to natural tendencies, not a biological destiny. If you learn to look at your coping mechanisms objectively, you’ll find it much easier to move on with your post-divorce life.

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.

Marijuana’s Role in Child Custody Disputes

Marijuana use among parents with young children has attracted a great deal of media attention recently due to stories about mothers who argue that smoking pot is no different than having a glass of wine with dinner. However, many parents are unaware that marijuana use will probably have a drastic and detrimental effect on child custody and visitation requests when seeking a San Jose divorce.

Illegal behavior of any sort can influence child custody decisions, especially if other factors are involved that indicate a parent may not be a responsible caretaker for the child. Marijuana use in California should be thought of as a kind of wobbler, California often authorizes it when there is a license, but the Federal Government still punishes its use or possession. A parent who has a medical marijuana license may not be breaking any California law, but the Court can easily see that the nature of marijuana, that it can cause short term memory loss and slow down reflexes, will often mean that the marijuana smoking parent is simply not as attentive as a parent who refrains.

Current Public opinion implies that in the future marijuana use might be legalized nationally. Nevertheless, many people in California believe that the majority of marijuana smokers do not need the marijuana, and that most of the smokers lied to get their marijuana license. Staring out with a presumption that you are a fraud will tend to undercut everything you have to say. If you smoke marijuana and want custody of your child you must be honest about that unstated (but very real and present) presumption of fraud and deal with it up front. Trying to ignore that the Court starts out thinking you are a liar will just lead you to lose.

In this attorney’s experience, the clients with marijuana use regularly also have an issue with ignoring or avoiding things they did not want to deal with. The problem with that denial approach is that the exact thing you refuse to face up to is regularly the very first thing the Court will want to talk about. Ignoring the thing the Court is most interested in hearing about generally does not lead to good results. For instance, the Court might think the following: since there is nothing about marijuana use that benefits your child(ren), many things about marijuana use that may harm your child(ren), and your use of marijuana is a case of you putting what you want to do ahead of the best interests of your child(ren), why should you have any custody? The answer to that question should be ready for the Court to hear if you want to prevail.

The standard used in child custody and visitation matters is the best interests of the child, not fairness to either parent. Focusing on what you want will not be a winning strategy in Family Court. The marijuana smoker, in this attorney’s opinion, faces a double hurdle, first show you are not a fraud and actually need the marijuana, and then show that you are an attentive and loving parent who your child(ren) need to spend time with. To win, you must bring the focus back to your child(ren).

Whether or not the marijuana use occurs when the children are present is an important factor in child custody decisions. Smoking marijuana when children are present is problematic and will probably hurt your case. Marijuana can impair judgment, making a parent possibly less likely to provide prompt and responsible care in the event the child is hurt or injured, and secondhand smoke can also cause a contact high and/or simply damage the child’s lungs like tobacco cigarettes.

Individual judges can play a significant role in the impact that marijuana use will have on child custody. Some judges are personally much more liberal than others. Some view marijuana use as similar to drinking alcohol (which generally leads to losing a custody battle, so this comparison hurts a marijuana smoker), while others believe penalties for marijuana use should be much more severe.

If you are concerned about the impact your marijuana use may have on child custody arrangements, it is important to discuss this issue with an experienced San Jose divorce lawyer as soon as possible. Do not try to hide the information from your attorney, as it is likely to be brought up if your ex is seeking custody. Your lawyer’s job is to advocate on your behalf and advise you on how to present your case so winning is possible, not to make judgments regarding your life choices. To represent your interests, your attorney needs to be aware of all relevant facts.

The Law Offices of Thomas Chase Stutzman a Professional Corporation

Category Archives: Spousal Support