Family Law / Probate
The Law Office of Steve Lopez represents clients in all types of family law matters. We take into consideration every client’s unique situation to ensure a fair resolution of their legal concerns in as a discreet manner as possible. If you have a family law issue, call our office today for a comprehensive consultation.
Family Law – Types of cases handled
- Divorce (“Dissolution of Marriage”)
- Child Custody, Support, & Visitation
- Paternity Proceedings
- Spousal Support (Alimony)
- Community property/debt division and forensic accounting
- Domestic Violence & Restraining Orders
- Mediating Your Divorce
- Paternal Rights
- Prenuptial/Postnuptial Agreements
When going through a divorce, numerous areas need to be addressed. Divorce is a complicated legal process and it can be full of unpleasant surprises and frustrating delays. Most of which will lead to significant emotional reactions. We have put together the following literature for you in hope that it will be informative and helpful. Our offices have the experience and can help you with any issues that are likely to arise.
The following is a general guideline of what you can expect in a divorce proceeding. Of course each divorce will be different because of specific issues between you and your spouse.
A divorce proceeds when you or your spouse hires an attorney and files a “Petition for Dissolution of Marriage” (complaint) with the Superior Court.
This petition together with a summons is then served to the other spouse. This other spouse is required to respond and is usually given three weeks to do so.
The other spouse may answer in several ways: she/he agrees with the petition/complaint; she/he disagrees and says how she/he would prefer to deal with divorce decisions; and or she/he doesn’t answer the petition/complaint, at which point, the court assumes that she/he agrees to its terms.
The other spouse hires an attorney. At this point, both attorneys and the couple will exchange documents and other pertinent information regarding child custody, child visitation, income, property division, alimony, etc. This information will help the court in its decision on how to deal with the issues of the above mentioned.
Before trial is set, you and your spouse can voluntarily resolve all your issues through mediation. If a settlement is reached through mediation, then the settlement is shown to the judge at an informal hearing. If the judge approves the settlement, the judge will grant you and your spouse a divorce decree that shows what you both have agreed to. If the judge does not approve the settlement, then a trail date is set.
At the trial, both sides present evidence and arguments for their side. The judge will then make the final decision regarding child custody and visitation, child and spousal support, and property division and grants the divorce.
The judge’s decision is final; however, either side can appeal the judge’s decision to a higher court.
When considering a divorce or determining how to respond to your spouse who has requested for a divorce; you need to know three main points: (a) Divorce in California is no-fault: meaning that eventually you will be divorced, (b) You must be a resident of California for at least 6 months and a county resident for 3 months, and (c) Obtaining a divorce in California can be extremely difficult and time consuming. However, the process can proceed more smoothly and faster if you and your spouse can cooperate and agree to certain compromises.
Child Custody, Support & Visitation
If there are children involved, you and your spouse must face the issue of child custody, child support and visitation. Most courts encourage and provide mediation before any custody-sharing issues are presented in public. Mediation is a service that is provided for by a mediator, who has no judicial power. Regardless, this service can be valuable as it can help you and your spouse work out any issues regarding child custody and support before they are presented to the judge. Also, keep in mind that you are not legally obligated to agree with the mediator. If you and your spouse can not agree on these issues, the court decides custody according to the best interest of the child. This decision is based on many factors such as which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent, the history of contact between the parent and the child, the health, safety and welfare of the child, the mental and physical heath of the parents, including history of alcohol, drug use or evidence of child abuse, and the child’s preference.
The court also decides how much in child support a parent is responsible for. Calculations are generally based on the incomes of both parents, how many children the parent is responsible for supporting, and how much time the children spend with each parent. Child support payments can be modified if the following circumstances arise. These include a big increase or decrease in either parent’s income, the child spending a lot more time with either parent, or the child being several years older or having special financial needs such as schooling or medical expenses.
Our office can help you determine how much child support you may be responsible for. We use a computerized soft that can calculate your share of child support. If you wish to find out, please call our office and we can set up a consultation for this service.
The following is a list of the different types of custody:
- Legal Custody: This is when a parent has the right and obligation to make decision about the child’s upbringing. Such decisions include schooling, and medical and dental care, etc. Sometimes joint legal custody is awarded to both parents. If this is the case, decisions regarding the child are shared between the parents.
- Physical Custody: This is when one parent has the right to have the child live with her/him. A couple can be awarded joint physical custody. This is usually done when the couple can maintain an amicable and respectful relationship post divorce.
- Sole Custody: This is when only the custodial parent has physical and legal custody of the child. The non-custodial parent has visitation rights.
- Joint Custody: This is when both parents have share decision-making responsibilities for physical control and custody of their children. Joint custody can be joint physically and joint legally.
Spousal Support (alimony)
When is alimony awarded? Alimony is only awarded to couples whom have been married. It is generally paid in monthly installments. In marriages of less than five years in duration, there is usually no alimony awarded. The reason for the court’s decision is because; each spouse has kept the same ability to support themselves prior to the marriage and each spouse is expected to be independent and self-supporting and to re-enter the workforce on short notice. However, many factors such as if one parent is the primary care giver for a child of the marriage will make the court reconsider it decision regarding alimony in this circumstance.
For marriages lasting longer than 5 years, spousal support may be awarded. The court’s decision on this issue and it calculation on the amount is based on many factors. These include: the standard of living established during the marriage, the receiving spouse’s assumed earning capacity, the impact on the children of having the care-giving spouse work, the contribution of each party to domestic duties and the education and career building of the other spouse, the property and debts received by each spouse, the physical and mental health of the receiving spouse, and any disparity in earning capacity between the spouses.
There are two types of alimony. The first type is called “rehabilitative alimony. Rehabilitative alimony is alimony paid for a specific period of time, and it is anticipated that all alimony will cease at the end of that period. This type of alimony is meant to allow the necessary time for the dependent spouse to upgrade education or acquire new work skills in order to return back to work.
The second type of alimony is permanent alimony. This type of alimony is to be paid for an indefinite period of time. However, this does not mean that the paying spouse can not ask the court for a reduction or even elimination of alimony if an appropriate circumstance arises. For instance, there are certain specific events which typically end or reduce spousal support. Such events include: the death of either spouse, remarriage of the receiving spouse, retirement or laying off of the paying spouse, and or substantial increases in the income of the receiving spouse.
Community Property/Debts Division-forensic accounting
California is a “community property” state. This means that assets and debts acquired during your marriage will be divided equally when you divorce. However, not all property is considered “community property”. Examples of non community property includes: assets you had before you married if it was kept separate from property acquired during the marriage, income produced by a separate property investment as long as it hasn’t been commingled with community money, and property you inherit from your family if it was willed exclusively to you and it was not commingled with community assets during the marriage.
If you have already decided that divorce is your solution, it is now important to look over your settlement for tax implications. Our counsel is an estate attorney and a tax preparer and he can look over your settlements and advise you on the best route for your situation.
Generally, the Internal Revenue Service doesn’t consider the transfer of assets between divorcing spouses a taxable event. However, there are numerous restrictions and exemptions to this rule. In the long run, tax laws especially those concerning capital gains tax are very discriminating about these assets and how you came by them. The following are common assets that can lead to tax problems if not handled carefully during a divorce settlement.
- The House
The house is the first asset that needs to be distributed. Most divorced couples sell the home and divide the proceeds. Some will do it at a future date, and others will buy out the spouse’s interest in the home. After selling the house, the couple now has two years to re-invest if they wish to avoid the capitol gains tax. However, this only applies if the home is the principle residence. This exemption will be voided if one spouse decides to live in the home for 2 plus years after the divorce, the principle residence rule no longer applies for them.This tax implication is more complicated for those over the age of 55 because more tax exclusion applies. For instance, each individual over 55 may qualify for capital gains exclusion of up to $125,000. If a couple who’s over 55 and looking at divorcing, it is advisable that they wait until the divorce is finalized to sell their home. The reason being is so that each can qualify for $125,000 making a total of $250,000, instead of $125,000.Regardless of the final decision, it is strongly advisable that the divorced couple either sells the home or transfer the title soon after the divorce is finalized.
- Mutual Funds, Stocks, Bonds, Artwork and Other Appreciating Items
These types of assets are appreciating assets, they should be carefully considered in light of the capital gains tax.
- Retirement Funds
These type of assets can be considered partially or completely marital property and therefore should be taken into consideration during the divorce settlement.Retirement plans like 401K have strict tax laws. The laws are strict with regards to the plan owner’s spousal rights and only allow you to ascribe the pension plan distributions to your spouse, no one. An ex-spouse is still entitled to some portion of the distribution plan. Usually divorcing couple draft a Qualified Domestic Relations Order (QDRO) which if written according to the law allows the ex-spouse the same distribution that they would have received if still married to the plan owner. In the event that the plan owner should remarry, the new spouse and the ex-spouse will receive a proportionate share of the plan’s distribution. The amount is determined by the length of each marriage and the contribution into the plan by each marriage.Unlike the 401K plan, an IRA is generally considered the property of its owner. This is true if only there have not been contributions into the IRA during the marriage. If there were contributions, the other spouse will have some of the IRS, as determined by state law. IRA can be transferred tax-free by a written divorce decree. If you are the receiving spouse of an IRA asset, be sure to have the funds rolled immediately over into your own IRA. If this is not done, your share could be subjected to a 20% withholding penalty for federal income tax.
It is important to have a competent estate planning lawyer when going through the tax implications of a divorce settlement. True that attorney fees can be expensive, but the long-reaching implications of a divorce settlement could have you paying higher taxes for years to come, long after attorney fees are paid.
Domestic violence can occur in any relationship whether it is between sexual partners, family members, or people who live together. It can come in any form such as bodily injury, sexual assaults, threats, destruction of personal property, or disturbance of peace. To prevent domestic violence from happening to you (or some one you know), you can obtain a restraining order. This retraining order can direct the named party to not approach you, your home, work, vehicle, and any communications with you, or to transfer any money and or property out of shared accounts. If you or someone you know is seeking to obtain a domestic violence retraining order, please act quickly as you do not want to let the situation escalate to something more.
Our staff will do all we can to assist you in this delicate, painful, and emotional matter as quickly and efficiently as we can.
For that reason, we have complied the following links which we think may be of additional help to you or someone you know in this situation.
- California Family Violence Referral Directory
This website contains listing of Domestic Violence referrals to shelters, legal assistance, batterer’s programs and much more. Provided by the Epidemiology and Prevention for Injury Control Branch (EPIC), a division on the Department of Health Services
- California’s New Program – SAFE AT HOME
The website contains a listing of all California counties and the agencies victims can contact to enroll in the program. In California victims can contact their local domestic violence facilities about enrolling in this free mail-forwarding service. The Secretary of State’s office is designated by participants as the “agent for service of process and mail receipt.”
Mediating Your Divorce
Mediation is a forum in which you and your spouse can discuss all the issues that may arise out of your divorce in front of a neutral third person. Some divorcing couples have found that mediation is non adversarial and helpful in resolving their conflicts. The reason is because a mediator remains neutral, does not give advice, and can’t act as an attorney for either party. The forum lends itself to open and free exchange of information so as to make it easier for both parties to negotiate. Whichever, route you choose to go, our office can assist you in finalizing your divorce.
The term “paternity” means that a person is recognized as a child’s biological parent in the legal system. Paternity is not assumed for unmarried couples. It can only be established if a person voluntarily signs a declaration stating that they are a biological parent. Once paternity is established under California law, the parent assumes the full rights and responsibilities involved with the raising of the child.
For the unwed father, without an established paternity, he has no recourse to seek custody or visitation rights with his child. He is not assumed to be the biological parent despite the fact that he may be listed on the child’s birth certificate. If he does spend time with his child and pays child support, the court will not usually consider that time unless there is an existing court order regarding visitation and child support. Without these orders, the court will set the time-share between father and child at zero percent (0%). The effect of using a zero percent time-share will be to set child support at the maximum level. The father is expected to pay child support and will be prosecuted by the District Attorney if he fails to do so. With regards to his right to be a part of his child’s life, his only hope is to seek court orders that will insure the time he spends with his child is both recognized and protected.
For the unwed mother, without a finding of “paternity”, the mother has no rights to recover child support from the father. Only once paternity is established can she enforce her right to receive child support. An unwed mother has a lot to gain when she established paternity. First, she can now enforce child support on the child’s father. Second, the father may not evade his financial responsibility by filing bankruptcy. Payments of child support are given a priority under the law. For example the father has other creditors, child support payment is considered first priority before the other creditors. Thirdly, child support can easily be enforced through a “wage arraignment”. In this arrangement, the child support payment comes directly form father’s employer. Finally, once a child support order is enforced, if payments fall behind, the mother can collect interest at the rate of ten percent (10%) a year on any unpaid amounts. In addition, there are also provisions under the law for an additional six- percent (6%) penalty to be added to late payments.
Unwed couples expose themselves to serious and at times devastating financial and emotional consequences if they do not seek court orders to protect their rights. To avoid future problems, we strongly suggest you call our office for a consultation.
Prenuptial/Postnuptial Agreements *
Prenuptial agreement allows for you to protect your separate property and protect you from your future spouses’ debts those incur before the marriage and those incur after the marriage. The agreement also allows for you to determine what kinds of support you will give your spouse should there be a divorce.
Different states have different laws regarding prenuptial agreements. Most states will only enforce a prenuptial agreement if it’s fair at the time you’re enforcing it and or your spouse had representation when you negotiated and signed the agreement.
Our staff can assist you in any part of a prenuptial agreement. Contact our office for a consultation.
* Terminology depends upon whether the agreement is signed before or after marriage.