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California is a community property state. This means that in all California divorce cases, unless a specific statute says otherwise, all property acquired during the marriage is shared 50/50 by the couple, and it must be divided evenly.

That being said, a recent California divorce case illustrates how a federal statute can supersede a family court order. In that case, the husband and wife agreed to an order requiring the husband to keep the wife listed as the beneficiary of the husband’s survivor and death benefits until another court order was agreed upon by them. The husband was an active duty service member at the time. Despite the order, six months later, the husband changed the beneficiary of his life insurance policy to his sister. The husband was terminally ill and died eight months later. After the husband’s death, his sister received the proceeds of the policy.

The husband’s life insurance policy was issued under a federal law:  the Servicemen’s Group Life Insurance Act of 1965 (SGLIA). The court found the SGLIA allowed the husband to change the beneficiary on his policy at any time without obtaining the wife’s consent or giving her notice. The court determined the SGLIA preempted state law. That is, although state law conflicted with federal law, the federal law prevailed. Since the SGLIA allows the service member to change the beneficiary “at any time and without the knowledge or consent of the previous beneficiary,” the husband had the right to change the beneficiary at any time, and the fact that the husband violated the order did not change the beneficiary of the policy.

Division of Property in California Divorce Cases

If a determination has been made that property is community property, it has to be divided equally between the parties. The court has to value, equally divide, and distribute such property between the parties. However, the parties can come to an agreement in writing by agreeing how they want to divide the property, and they may present the agreement to the court. In these cases, courts will generally honor validly entered agreements between the parties.

Property includes not only physical property like real estate, cars, and furniture but also bank accounts, tax refunds, bonds, and business interests. It also may include retirement benefits, life insurance policies, pensions, and other benefits. Some of these assets can be more valuable than any other property. Debts are also considered in the division of assets and have to be carefully reviewed as well.

Disputes often arise over whether certain property is community property or separate property, how much certain property is worth, and whether a division of property is equal. And as the recent California case demonstrated, understanding the complex consequences of conflicting laws may be very important in understanding the consequences of certain decisions. An experienced attorney is important to help spouses obtain a favorable outcome, whether through an agreement or by proceeding to trial.

Contact a San Jose Divorce Attorney

If you are going through a Bay Area divorce, or are considering initiating divorce proceedings, retaining a trustworthy and knowledgeable family law attorney is essential in obtaining an appropriate outcome. The outcome will likely affect the rest of your life. San Jose family law attorney John S. Yohanan has over 35 years of experience representing Northern California residents in family law matters. We can help you file for a divorce, obtain a legal separation, or resolve another family law issue. To set up a consultation, contact us at 408-297-0700 or through our online form.

Related Blog Posts:

California Court Finds Return from Deployment Does Not Confer Automatic Custody Benefit to Deployed Parent, Bay Area Divorce Attorney Blog, December 12, 2017

Court Upholds Parents’ Stipulated Agreement, Requiring California Father to Contribute to Children’s Medical Expenses, Bay Area Divorce Attorney Blog, November 20, 2017

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In a recent California child custody case, the court considered a military deployment presumption in California’s family code, clarifying how courts should interpret the statute.

The Facts of the Case

In that case, a couple married, had two children, and divorced four years later. The mother and father were both active service members in the Air Force. The parents were later stationed in different states and countries at various times. The children lived with the mother and then with the father. When the father was then deployed overseas, the mother was given temporary physical custody of the children, pursuant to Family Code Section 3047. When the father returned from his deployment, the case went to trial on the issue of the children’s custody.

After the trial, the judge said that based on the best interest of the children, the judge would have ruled that the mother be the primary custodial parent because the judge found the mother was more likely to cooperate and facilitate visits with the father. However, the court considered the military deployment presumption in California’s Family Code section 3047, and it found that the statute meant that the children would return to the father after he returned from deployment. The mother appealed.

Section 3047

Section 3047 of California’s family code states that “[i]f a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military” that affects the party’s ability to exercise custody or visitation rights, “any modification of the existing custody order shall be deemed a temporary custody order made without prejudice, which shall be subject to review and reconsideration upon the return of the party from military deployment, mobilization or temporary duty.”

In addition, it states in part that if the temporary order is reevaluated after the deployment, mobilization, or temporary duty, there is “a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child.”

The Court’s Decision

On appeal, the court found the trial court had misinterpreted section 3047. The court explained that Section 3047 states that custody will revert to the order in place before the deployment, “unless the court determines that it is not in the best interest of the child.” Therefore, the best interest of the child is still the “overarching concern” for determining child custody. Accordingly, the appeals court held that the trial court had to reevaluate the evidence and issue a custody order based on the best interest of the children and on the terms of section 3047.

Contact a San Jose Child Custody Attorney

Child custody and visitation is an emotionally sensitive issue in paternity and divorce cases. The involvement of an assertive law firm is absolutely vital to achieving an appropriate custody and visitation arrangement for your family. Experienced San Jose child custody attorney John S. Yohanan has been guiding families through these legal challenges for over 35 years and will work hard to put his experience to use for you and your family. We can help you file for divorce, help obtain a legal separation, or assist you with any other California family law issue. Contact John S. Yohanan at (408) 297-0700.

Related Blog Posts:

Court Finds Husband Has Duty To Provide Spousal Support to Immigrant Wife After Separation as Immigration Sponsor, Bay Area Divorce Attorney Blog, November 7, 2017

Court Upholds Parents’ Stipulated Agreement, Requiring California Father to Contribute to Children’s Medical Expenses, Bay Area Divorce Attorney Blog, November 20, 2017

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Earlier this month, an appellate court issued a written opinion in a California divorce case requiring the court to determine if the husband was responsible for half of the children’s medical expenses not covered by insurance. The court ultimately held that, pursuant to the agreement entered into between the husband and wife, the husband was responsible for half of the expenses. Furthermore, since the trial court awarded full custody over the children’s orthodontia care to the wife, the husband had no say in obtaining the care.

The Facts of the Case

The husband and wife were married in November 1996. They had two daughters during the marriage and filed for divorce in 2009. Both the husband and wife heavily litigated many issues during the divorce proceedings, and the overall environment was very contentious. Eventually, the husband was determined to have defrauded the wife, and a court ordered that he pay nearly $450,000 to the wife as a result. The agreement awarded joint legal custody to both parents and required the husband to pay child support and half of all medical expenses that were not covered by insurance. There was no order for spousal support.

At some point in the proceedings, the wife petitioned the court for sole legal custody because the husband was refusing to pay for the children’s orthodontia care. The trial court awarded the wife full authority over the children’s orthodontia care and ordered the husband to pay for half of the expenses not covered by insurance.

The wife obtained orthodontia care for the children, as per the agreement, and requested that the husband pay for half of the expenses not covered by insurance. The husband refused, and the trial court again ordered he pay.

In response, the husband made several arguments. First, he argued that the trial court wrongly interpreted the agreement between the parties in finding that he was to pay half of the uncovered medical expenses. However, the court determined that this argument lacked merit because the agreement clearly stated each party’s obligations. Next, the husband argued that the trial court was improper to award the wife full authority over the children’s orthodontia care because there was no “change in circumstance” warranting the change. The court rejected this argument, finding that a trial court need only find that the modification is in the best interest of the child. The court explained that a finding of a “change in circumstance” is only required when there is a change in legal custody.

Are you Considering Filing for Divorce in California?

If you are considering filing for a Bay Area divorce, you need effective counsel who can help you through what may be a long and drawn-out process. While not every California divorce is messy, many are. As in life, when preparing for a California divorce, it is best to prepare for the worst and hope for the best. Attorney John S. Yohanan has decades of experience handling a wide range of California family law matters, and he believes that diligent preparation is the key to his success. To learn more about California family law, call Attorney Yohanan at 408-297-0700 to schedule a free consultation today.

Related Blog Posts:

Court Finds Husband Has Duty To Provide Spousal Support to Immigrant Wife After Separation as Immigration Sponsor, Bay Area Divorce Attorney Blog, November 7, 2017

California Court Rejects Husband’s Annulment Claim Based on Alleged Fraud, Bay Area Divorce Attorney Blog, October 25, 2017

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California divorce courts often have to consider a range of complex issues, including the division of assets, custody of children, and spousal support. In a recent California spousal support case, one court had to consider whether a wife could sue for spousal support not only under state law, but also through an immigration form signed in connection with a spousal visa petition.

The Facts of the Case

The husband was a U.S. citizen, and his wife was a citizen of Fiji. In 2012, they were married in Fiji, and the husband filed a visa petition to bring his wife to the United States. As part of the petition, the husband signed a form I-864 affidavit of support. The form is meant to ensure that an immigrant does not become a public charge. In signing the form, the husband agreed to provide his wife with any support necessary to maintain her income at 125 percent of the federal poverty guidelines. The form also stated that if the husband did not provide her with sufficient support, the wife could sue him for that support.

The wife moved to the United States in 2013. According to the wife, the husband abused her and told her he wanted her to go back to Fiji. Later that year, the husband and wife went to Fiji, and according to the wife, her husband abandoned her there and tore her permanent resident stamp out of her passport. The wife obtained temporary travel documents from the U.S. Embassy in Fiji and returned to the United States on her own.

The husband subsequently filed a petition for annulment and, in the alternative, dissolution of marriage. The wife later filed a financial statement in response, in which she said that she did not receive a salary and that she had applied for public welfare benefits. She argued that by signing the I-864 affidavit, the husband vowed to support her for 10 years. The court ordered the husband to pay temporary spousal support of $675 per month. The court also ordered her to obtain the necessary paperwork for her to be able to work in the United States.

Four months later, the husband filed a request for an order terminating spousal support. He argued that the wife did not make any effort to become self-supporting. The wife again asked the court to continue spousal support based on the I-864 affidavit. She claimed she was entitled to $1,196.15 per month, based on 125 percent of the federal poverty guidelines. The trial court terminated spousal support because it found the wife was not making her best effort to find work. The wife appealed.

The Court’s Decision

A California appeals court reversed the trial court’s decision. If found that the I-864 form gave the wife the ability to enforce the husband’s obligations under the affidavit in state or federal court. The court explained that although California statute provides guidelines for providing and terminating spousal support, the wife also had a contractual claim for support based on the husband’s obligations under the I-864 affidavit. In addition, the wife did not have to seek employment to mitigate damages under the I-864 claim.

Spousal Support

In California, a court has to consider a number of circumstances in determining whether a spouse must pay spousal support. Some of these circumstances include the earning capacity of each spouse, the standard of living established during the marriage, the duration of the marriage, and the hardships to each spouse. A spousal support order can also be modified or terminated, depending on the parties’ circumstances.

Are You Going Through a Divorce?

If you are going through a Bay Area divorce, or are considering initiating divorce proceedings, meet with an experienced family law attorney as soon as possible. Retaining a trustworthy and knowledgeable family law attorney is essential in obtaining a favorable outcome in a divorce. San Jose family law attorney John S. Yohanan has over 35 years of experience representing California residents in family law matters. We can help you file for divorce or obtain a legal separation, and we can provide guidance and assistance in a wide range of other family law issues. To set up a consultation, contact us at 408-297-0700 or through our online form.

Related Blog Posts:

California Court Determines Husband’s Transfer of Business Interest to New Wife Was Made in Bad Faith, Bay Area Divorce Attorney Blog, October 12, 2017

California Court Rejects Husband’s Annulment Claim Based on Alleged Fraud, Bay Area Divorce Attorney Blog, October 25, 2017

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An annulment is a legal term that means to declare something invalid. Thus, when a California marriage is annulled, it is as though the marriage never occurred. While annulments are rare under California law, the repercussions of an annulment can be great, so it is important for those in the process of a California separation to understand what an annulment is and what the consequences of an annulment are.

In California, an annulment is only proper in limited circumstances. Some marriages are never valid, including those that are incestuous or bigamous. However, other marriages can be declared invalid by a court under certain circumstances, including when:

  • One or both of the spouses were not of the legal age to marry;
  • Either spouse was not of sound mind;
  • The marriage was based on some act of fraud regarding a matter that was material to the relationship; or
  • One of the spouses was forced into the marriage.

Importantly, in order for any of the above to satisfy the requirements of an annulment, the fact giving rise to the annulment must have been present at the time of the marriage. That is to say, for example, fraud committed during the marriage cannot be the basis for an annulment.

The effect of an annulment is very different from the effect of a divorce. For example, either spouse of an annulled marriage will not qualify for spousal benefits. Additionally, the spouses’ property will not be subject to division based on community property rules. Child support, however, is unaffected by an annulment and is calculated the same as in a divorce.

A recent opinion issued by the Fourth Appellate District of California discussed the elements of an annulment.

The Facts of the Case

The husband and wife were married in Nigeria in 1989. At the time, the wife told the husband that she was born in 1960. However, she was actually born in 1968. This fact was reflected on her passport and driver’s license.

During their marriage, the couple had a child who was born with sickle-cell anemia. When the wife met the husband, she did not disclose that she was a carrier for the disease, but she did not know she was a carrier until she was tested once she was pregnant.

After 20 years of marriage, the husband petitioned the court for an annulment. The court rejected the husband’s request and entered a dissolution order, granted custody of the couple’s children to the wife, and divided the couple’s property. The husband appealed several issues, one of which was the court’s decision not to grant the annulment.

On appeal, the husband claimed that the marriage was based on fraud in that the wife lied about her age and failed to disclose that she was a carrier of sickle-cell anemia. However, the appellate court agreed with the lower court and rejected the husband’s appeal. The court explained that regardless of what the wife told the husband regarding her age, her correct age was documented on her passport and driver’s license. Similarly, the wife had no knowledge of the fact that she was a carrier of sickle-cell disease.

Are You in the Middle of a California Separation?

If you and your spouse are currently in the process of separating, you should discuss your situation with a dedicated Bay Area divorce attorney with both the experience and the knowledge to zealously represent you throughout the process. While some California divorce proceedings are straightforward, the majority of couples face unanticipated issues along the way. Attorney John S. Yohanan has decades of experience representing both sides in all California divorce matters, and he has a deep understanding of the substantive laws that apply in California divorce, custody, and related family law matters. Call 408-297-0700 to schedule a free consultation with Attorney Yohanan today.

Related Blog Posts:

California Court Determines Husband’s Transfer of Business Interest to New Wife Was Made in Bad Faith, Bay Area Divorce Attorney Blog, October 12, 2017

California Appellate Court Determines Life Insurance Policy Purchased with Joint Funds Is Community Property, Bay Area Divorce Attorney Blog, September 22, 2017

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Earlier this month, the Court of Appeal for the Second Appellate District issued an interesting written opinion in a California spousal maintenance case in which the husband was seeking to terminate a court order that he pay spousal support based on a change in circumstances. The court rejected the husband’s request, however, since it determined that the husband’s transfer of his business to his new wife was done in an attempt to avoid paying spousal support. As a result, the husband was required to keep making spousal support payments into his retirement.

The Facts of the Case

In 2009, the husband and the wife divorced, and the husband was ordered to pay spousal maintenance payments in the amount of $9,500/month. That figure was later lowered by agreement to $4,000. In 2015, the husband sought to eliminate the payments altogether, claiming that his retirement constituted a change in circumstances.

Prior to his retirement, the husband, a retired police officer, ran a private investigation and security business. He paid himself a salary of approximately $50,000 annually, and the business generated an additional $220,000 in business income each year. The husband claimed that he had retired, and the business was now in the hands of his new spouse.

The wife objected to the husband’s request to terminate benefits, arguing that the only reason he transferred the business into his new spouse’s name was to avoid paying spousal support payments. In support of her argument, the wife presented evidence showing that the husband transferred the business to his new spouse for no consideration.

The court agreed with the wife, finding that the transfer of the husband’s interest to his new spouse was done to avoid the husband’s responsibility to pay spousal support. The court explained that, while the husband may no longer be running the business, it is reasonable to assume that the business would still be generating a profit. Thus, while the husband was no longer receiving his $50,000 salary, the court imputed $50,000 in business income to the husband, keeping the amount of spousal support the same. The court also explained that, if the husband’s income really did change, he would be able to submit proof to the court in a subsequent request to reduce or eliminate the spousal maintenance payments.

Are You Going Through a Bay Area Divorce?

If you are currently going through a Bay Area divorce, or you would like to initiate divorce proceedings, you should meet with a dedicated California family law attorney as soon as possible. John S. Yohanan, Attorney at Law, is a knowledgeable Bay Area divorce attorney who has decades of experience representing clients in all types of family law matters. Attorney Yohanan understands that the divorce process is a deeply personal one, and he makes sure to respect each client’s needs. To learn more about how Attorney Yohanan can help you with your San Jose family law issues, and to schedule a free consultation to discuss your needs, call 408-297-0700.

Related Blog Posts:

California Child Custody Cases: Gauging Best Interests, Bay Area Divorce Attorney Blog, August 31, 2017

California Appellate Court Determines Life Insurance Policy Purchased with Joint Funds Is Community Property, Bay Area Divorce Attorney Blog, September 22, 2017

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Earlier this month, the Supreme Court of California issued a written opinion in a California property division case that required the court to determine if a life insurance policy purchased by the husband and naming the wife as the sole beneficiary should be considered communal property at a dissolution proceeding, or whether it was properly found to be the wife’s separate property. Ultimately, the court concluded that the insurance policy was communal property, and the court reversed the intermediate appellate court’s finding to the contrary.

The Facts of the Case

The husband and wife were separated in 2004 after 20 years of marriage. Prior to the couple’s separation, the husband purchased a $3.75 million life insurance policy, using communal funds from the couple’s joint bank account. Likewise, the policy premiums were also paid out of the couple’s joint bank account. The policy named the wife as the sole beneficiary.

At a dissolution proceeding, the wife wanted to have the insurance policy considered as her own separate policy. The testimony showed that the husband obtained the policy when he was in the hospital suffering from heart problems, that at the time he had no plans on separating from the wife, and that he put the policy in her name, assuming she would use the proceeds to take care of the couple’s three children. The trial court determined that the insurance policy was community property and ordered the husband to buy out the wife’s interest. The wife appealed, and the case was reversed by the intermediate appellate court, finding that the policy was the wife’s separate property. The husband appealed.

The California Supreme Court’s Opinion

The California Supreme Court reversed the intermediate appellate court’s decision, finding that the insurance policy was properly considered community property. The court explained that, in general, property obtained during a marriage is considered community property unless an exception applies. Here, the wife argued that the status of the insurance policy changed from community property to her own separate property when the husband named her as the sole beneficiary.

The court explained that in order for property to transmute, or change, from community property to separate property, there must be an “express declaration” signed by the adversely affected spouse. However, the wife did not have an express declaration signed by the husband. Instead, she claimed that the transmuting requirements did not apply because the insurance policy was technically payable by a third party – the insurance company – rather than by the husband.

The court rejected the wife’s argument, finding that the legislative intent behind the relevant statute did not support her position. As a result, the court remanded the case back to the intermediate appellate court so that it could properly analyze the remaining issues in the case.

Are You in the Middle of a Bay Area Divorce?

If you are currently involved in a California divorce, or you are considering filing for divorce, you should seek the assistance of a dedicated Bay Area property division attorney. Attorney John S. Yohanan has over three decades of experience assisting clients with various family law issues, including California divorce proceedings, child custody determinations, and child support awards. He understands that each client and each case is unique, and he provides each client the individualized attention they deserve. Call 408-297-0700 to schedule a free consultation with Attorney Yohanan today.

Related Blog Posts:

California Child Custody Cases: Gauging Best Interests, Bay Area Divorce Attorney Blog, August 31, 2017

Court Refuses to Retroactively Apply Permanent Spousal Support Order in Recent California Divorce Case, Bay Area Divorce Attorney Blog, August 15, 2017

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Last month, the California Court of Appeal, Fourth Appellate District issued a written opinion in an interesting family law case requiring the court to determine if a previous court order in a dissolution case finding that a couple was not legally married precluded litigation of whether the marriage existed in a subsequent nullity case. Ultimately, the court determined that since the two causes of action involve different primary rights, the previous court’s finding that no marriage existed did not prevent the wife from later seeking a nullity action.

What Is Res Judicata?

Under the doctrine of res judicata, once a court decides an issue, that finding cannot be revisited in a subsequent case. There are two types of arguments that are precluded under the doctrine of res judicata, claim preclusion and issue preclusion. Claim preclusion prevents the same parties from relitigating a case once it has been decided. Issue preclusion prevents parties from relitigating the same issue in a subsequent case, as long as the parties are in privity.

The Facts of the Case

In 2014, the wife filed a dissolution action against the husband, claiming that the two were married in Mexico in 1989, citing irreconcilable differences. The husband claimed that the two were never married. After hearing the evidence, the court concluded that no valid marriage existed and dismissed the wife’s case.

Several months later, the wife filed a nullity action against the husband, claiming that the marriage into which she thought she had entered was fraudulent. She cited the husband’s recent denial of the existence of a marriage during the dissolution action as evidence that the two were never actually married. She successfully sought temporary spousal support until the case was resolved.

The husband appealed, arguing that the case establishing that the two had never been legally married (the dissolution case) had already been decided and that res judicata prevented the wife from attempting to relitigate the case. Essentially, the husband was arguing that the previous dissolution case already answered the question of whether the couple had ever been married, and there was no need for this case.

The court disagreed with the husband and allowed the wife’s case to proceed. The court began by clarifying that the husband’s argument was that the dissolution case was determinative of whether a marriage existed. Thus, the husband was making a claim preclusion argument. However, since the court determined that a nullity action and a dissolution action involve different primary rights, the dissolution case was not preclusive of the nullity action.

The court explained that dissolution actions dissolve a valid marriage. Thus, a person’s married status – while valid at the time of filing – would change to unmarried after the action is complete. A dissolution case is based on grounds that occur after the alleged marriage. A nullity action, however, is based on grounds that occur before a marriage was ever formalized and answers whether there was ever a valid marriage at all.

Are You Involved in a California Divorce Proceeding?

If you are considering filing for a California divorce or nullity action, you need the assistance of an experienced California family law attorney. As you can see from the discussion above, even seemingly simple concepts can quickly become complex. San Jose divorce attorney John S. Yohanan has decades of experience helping his clients understand California family law, and he puts his advanced knowledge of the law to use for his clients. Call 408-297-0700 to schedule a free consultation with Bay Area family law attorney John S. Yohanan today.

Related Blog Posts:

California Child Custody Cases: Gauging Best Interests, Bay Area Divorce Attorney Blog, August 31, 2017

Court Refuses to Retroactively Apply Permanent Spousal Support Order in Recent California Divorce Case, Bay Area Divorce Attorney Blog, August 15, 2017

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Timing can be very important in California divorce cases. In some situations, a party’s failure to raise an issue in a timely manner can preclude that party from seeking certain relief down the road. A recent appellate decision issued by California’s Fourth Appellate District illustrates the difficulties one spouse had in requesting that the court’s order requiring spousal support be retroactively applied as of the date of the dissolution.

The Facts of the Case

In May 2014, a wife filed for dissolution of her 22-year-long marriage to her husband. When the wife filed the application for dissolution, she checked the box on the form indicating that she would be seeking spousal support. As is common in California divorce cases, the couple attended a mandatory settlement conference, where several issues were resolved; the issue of spousal support, however, was left for trial.

The wife filed a formal brief with the court, seeking permanent spousal support; however, nowhere in the brief did the wife request temporary support be ordered in the interim. In the following July, the parties agreed that the husband would pay $800 a month in spousal support to the wife. The agreement took effect on July 1, 2015, and it left open the issue of whether the spousal support order would be retroactive.

The judge overseeing the case determined that the order of spousal support could not be made retroactive. The court explained that there are two types of spousal support in California. The first, temporary spousal support, or Pendente lite, is designed to ensure that the requesting spouse is able to live in the manner to which he or she is accustomed during the pendency of the dissolution. Under California law, courts have discretion when issuing Pendente lite support.

The other type of California spousal support is permanent spousal support. This issuance of permanent spousal support is dictated by California Family Code section 4333. Section 4333 allows retroactive benefits only from the date that the requesting party files a motion or order to show cause. Here, the court explained that section 4333 does not permit the wife’s request to apply the permanent spousal support order retroactively because the wife never filed a motion or order to show cause. Instead, the wife entered into an agreement with the husband with an effective date of July 1, 2015. Thus, the court held there was no date available to back-date the wife’s request.

The court explained, however, that if the wife had requested temporary spousal benefits during the pendency of the dissolution proceedings, the court would have been able to apply the support order retroactively. This is because section 4333 does not apply to temporary spousal support orders, which are left largely to the discretion of the presiding judge.

Are You Considering Filing for Divorce in California?

If you are considering filing for divorce or seeking spousal support in California, you should seek the counsel of a dedicated Bay Area divorce attorney to assist you in the preparation of your case. While some divorce proceedings are straightforward, more often than not, unanticipated issues arise. Attorney John S. Yohanan has over 30 years of experience practicing Bay Area family law, and he recognizes that each case is unique and diligently works to secure a favorable outcome for his clients. Call 408-297-0700 to schedule a free consultation with attorney John S. Yohanan today.

Related Blog Posts:

California Child Custody Cases: Gauging Best Interests, Bay Area Divorce Attorney Blog, August 31, 2017

Marital Settlement Agreements are Tough to Undo in California, Bay Area Divorce Attorney Blog, July 31, 2017

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California child custody disputes often center on one parent’s word against the other parent’s word. As the state’s Second District Court of Appeals recently explained, the primary question in any custody case should be:  what’s in the best interest of the child?

Mother and Father were married for more than two years before Father filed for divorce in 2013. They had two children – ages five and three – at the time. Mother explained to the family court hearing the case that the children had been living with her since the couple split a month earlier. She declined to provide the address, asserting that Father had been sexually abusive to her and physically abusive to the children. Father, on the other hand, claimed that Mother wrongly moved with the children to Texas without his permission. He said Mother was lashing out at him because she was fired from her job at a hospital after Father told the hospital he had found vials of drugs that she took from work.

A trial judge eventually held a hearing on the matter, in which both Father and Mother testified and presented witnesses to support their claims. A licensed clinical social worker who interviewed the parents, kids, and other witnesses recommended that Mother be granted full custody of the children. The social worker said Father was “manipulative.” Although the children had a good relationship with both parents, the social worker said the relationship was stronger with Mother. The social worker also said Mother moved the kids to Texas because she didn’t understand the law and made a mistake. The judge, however, came to a different conclusion. He found that Mother lied about the abuse allegations as an excuse for running off with the kids. As a result, the judge ordered that the children remain in California and that the parents continue to share custody.

Reversing the decision on appeal, the Second District said the trial judge abused his discretion by making a number of factual findings without sufficient evidence to back them up. The judge found, for example, that only Father had shown the “stability” necessary to properly care for the children. Father was living with his girlfriend at the time, while Mother was living with her parents. The Second District disagreed with the Court’s assumption. “While [Husband]’s involvement with the children’s educational and medical needs was disputed, the evidence uniformly suggested that [Wife] was attentive and proactive in these areas,” the Court said.

The Court also said there was enough evidence to support the judge’s finding that Wife’s allegations of abuse were unfounded and that Wife would do or say anything to keep the kids. But it also said the judge may have taken that conclusion too far by assuming it wasn’t in the kids’ best interest to stay with Mother. It noted that Mother had complied with all of the court orders to keep the children in California and share custody with Father. It also noted that the social worker recommended that Mother get custody of the children.

“In sum, although the trial court recognized the difficulty in making a custody determination in this type of case, we conclude it failed to properly consider all of the relevant circumstances in evaluating the best interest of the children here,” the Second District concluded.

If you’re considering a divorce or are grappling with child custody and other issues in California, contact San Jose divorce attorney John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of marital disputes. Call our office at (408) 297-0700 or contact us online to schedule a consultation.

Related blog posts:

Resolving California Child Custody Cases when Parents Live in Different Places – In re Marriage of Runge

Appealing a California Divorce Decision – In re Marriage of Plasse

Want More Child Visitation Time in California? Make Sure to Use What You Have

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