San Jose Divorce Lawyer Blog

Judge vs. Commissioner – Is There a Difference?

February 26, 2019 | by Andrea Mah

Some San Jose divorce, custody and/or support matters are assigned to a department where a judge is presiding, while other matters are heard in front of a commissioner. So, what is the difference between the two, and is one better than another?

A judge is elevated to the bench either by election or by appointment by the Governor. A judge must also be a licensed attorney to be eligible to serve on the bench. A commissioner, on the other hand, is an individual who is hired by the court to help out with a judge’s case load. Commissioners must also be licensed attorneys to be eligible to serve as a commissioner. Often, Commissioners work very closely with judges, and judges consider them essential for managing the work of the court.

Commissioners can perform judicial duties involving the determination of contested issues only upon the stipulation of the parties, but with that stipulation they have the same powers as judges. That means that the commissioner has the same power as a judge to hear a court case and make legally binding judgments. Per California Code of Civil Procedure Section 259, “[s]ubject to the supervision of the court, every court commissioner shall have power to do all of the following:

Nesting / Birdnesting – Easing the Impact of Divorce on Children?

January 7, 2019 | by Andrea Mah

Most people recognize that divorce isn’t easy on children, no matter what the circumstances surrounding the divorce are. However, for may reasons, it is helpful to try to keep the divorce process as low-conflict and as amicable as possible.

Some couples are implementing “nesting”, also known as “birdnesting”, as a way to ease the impact of divorce on their children. So what is nesting? Generally, nesting occurs where parents keep the main house and then share a separate house or apartment where they will stay when they are not at the main home with the children.

The idea behind nesting is that it is less disruptive for the children to remain in the family home, and have the parents rotate to the separate location, as opposed to shuffling children back and forth between two different households. This type of nesting is beneficial to children because not only do they get to stay in a home that is familiar to them (and thus relieving the need to take belongings to different homes), but it often allows them to remain at the same school and keep in touch with friends.

Pet Custody and Visitation

October 3, 2018 | by Arlette Argyris

Often parties wonder what will happen to their pets during a divorce. Will the parties share the pets? Can you negotiate custody of a pet as you would a child? Thus far, pets have always been treated as property in the eyes of the family court. This upset avid pet lovers, but the reality of the situation is that pets typically went where the children went.

However, Jerry Brown has just signed a bill in California granting judges the authority to settle pet custody disputes similarly to how child custody disputes are handled. The law is set to go into effect on January 1, 2019. While many believe this is a positive step forward, and it certainly is as parties will now have rights over their pets, the concern is that it will bring new havoc and discord to family law cases. Nevertheless, the court’s previous stance on pets seemed quite harsh, particularly to those parties who love their pets like humans or like their own children. Pet owners were often indefinitely separated from the pets they loved with absolutely no recourse.

Now, parties can either agree to a visitation plan with their pets or have a Judge decide. This brings up several additional questions, however. Can one party request pet support? Or perhaps the parties will have to share in the cost of pet health insurance? The outcome of this new law remains to be seen and will be far reaching but will prove to make pet owners happy with the family court.

Emergency Screenings In A Child Custody Dispute

August 6, 2018 | by Arlette Argyris

Emergency Screenings can be a difficult concept for parents to face, whether they are the parent who has requested a screening or the parent who has been served with a request for a screening.

The court will typically order an emergency screening in a child custody case when a Judge has found that an immediate emergency may exist involving the children and that possible emergency warrants further investigation. Examples of instances in which this can occur include allegations of drug and alcohol abuse by one or both of the parents, allegations of violence against the child/children, allegations of neglect by one or both of the parents, involvement in a Child Protective Services Investigation, etc. There can be a number of reasons that the court can order an emergency screening take place, particularly if there is a risk to the health, safety or welfare of your child.

According to Santa Clara County Court Rule 2, “in any case in which an emergency exists, the Court may order a staff member of FCS (other than the mediator) to conduct and emergency screening (a preliminary and limited investigation), to make recommendations regarding the temporary custody, visitation and related conditions for the minor children.”

Incentive to Hurry Up and Get a Divorce?

July 9, 2018 | by Arlette Argyris

Trump’s administration has recently made several changes to current tax laws and among many other areas, the tax implications of divorce have been greatly affected. If there has ever been a time to “hurry up and get a divorce” it may be now.

A change in the new tax laws will eliminate a major break that many often took into consideration when contemplating divorce. That is the ability to deduct alimony or spousal support payments on your taxes. Any divorces finalized after December 31, 2018 will no longer receive the benefit of this tax deduction, which is why countless lawyers and financial advisors are warning clients who are contemplating divorce to act fast.

Agreements signed before the end of the year will still qualify for this deduction, but this can have huge financial implications when one party earns significantly more than the other. For decades, individuals paying alimony or spousal support to a former spouse were able to deduct the payments from their taxes, which often prompted the paying spouse to pay slightly more than they normally would agree to. This could have a huge impact on the paying spouse especially when there is a large gap in income between the two parties. According to the IRS, a staggering 600,000 Americans claim this deduction.

Pros and Cons of Using a Private Judge in Your San Jose Divorce Case

June 26, 2018 | by Arlette Argyris

https://www.lawyers.com/legal-info/family-law/divorce/pros-and-cons-of-using-a-private-judge-in-my-divorce.html

The above article posted on lawyers.com discusses some of the pros and cons of using a private judge in your divorce case. If you are considering hiring a private judge or are wondering whether it might be right for you, contact Argyris Mah, LLP at (408) 564-5674. We can discuss your case with you, answer your questions, and provide you with expert advice as to whether a private judge might be right for your case.

“Live In Divorce” – The New Norm in California?

June 21, 2018 | by Arlette Argyris

There are many costs to divorce, including the obvious costs of attorney fees, court filing fees, support payments, etc. However, many people often overlook the significant costs associated with maintaining two households, versus one. A recent article on SF Gate addressed the significant costs associated with physically separating including obtaining at least one or two new residences, furnishing those residences, moving, and maintaining the costs for said residence, without the benefit of two incomes. In some cases, given the extremely high cost of living in California, and particularly the Bay Area, this can be almost impossible. As such, it appears that many people are choosing, or being forced, to remain living together, despite a separation or actual divorce.

https://m.sfgate.com/mommyfiles/article/live-in-divorce-San-Francisco-separation-cost-12770531.php

The costs associated with living separately can have a significant effect on a couple’s divorce case and can be a factor when determining spousal support, child support and property division.

Court Orders Unrestricted Phone Access Between Brad Pitt and his Children

June 18, 2018 | by Arlette Argyris

People.com recently reported that in Brad Pitt and Angelina Jolie’s divorce case, a family law judge has made an order that Brad Pitt may contact the parties’ children directly, at any time.

https://people.com/movies/brad-pitt-unrestricted-phone-access-kids-report/

Communication between a non-custodial parent and the children is often a “hot button” issue in contentious custody and divorce cases. Contact us at (408) 564-5674 for a free 20-minute telephone consultation and we can answer questions related to this issue, and any other questions you have relating to your San Jose divorce or custody case.

The Reality of Celebrity Divorces – A Reminder Following the Brangelina Divorce Announcement

June 13, 2018 | by Arlette Argyris

Earlier this week, it was announced that Angelina Jolie and Brad Pitt are getting divorced, and the internet went crazy. There were articles on all of the news outlets websites, memes and jokes about how happy Jennifer Aniston must be, and rampant speculation about the causes of the divorce: did Brad cheat? Is he an alcoholic? Etc., etc., etc. What no one mentioned is that these are two people who are likely going through one of the most difficult times in their lives, and who have 6, that’s right, SIX minor children. What happens to the kids in all of this?

We hear about celebrity divorces so often, that it is almost as if they are not real to us “regular” people. When one of our family members or friends announces a divorce, we reasonably react with sympathy, support and worries about the kids. Yet, when a celebrity announces a divorce, we seem to forget that they are actual people, with feelings, and with assets and debts that need to be divided, and children whose best interests need to be considered – children who will certainly be impacted by the separation of their parents and will now be dividing time between those parents, rather than living with both parents as a family. Simply because they are celebrities, does not make them immune to the difficulties involved in a divorce, both emotional and legal.

For example, it was reported that Angelina Jolie has requested sole custody of the children. When news like that is reported, it comes with such drama. But, in reality, a request for custody and visitation orders involves procedural requirements, court appearances, and in a Santa Clara County divorce case, mandatory mediation requirements. Further, a request for sole custody of children in California, and in Santa Clara County specifically, is a big deal. The courts are not likely to grant such a request unless the parent requesting sole custody can show that the other parent poses a significant threat to the children’s health, safety or welfare. This is because children have a right to frequent and continuous contact with both parents.

Prenups – Do You Need One?

June 4, 2018 | by Arlette Argyris

When getting married, most people don’t like to think about the possibility of divorce, but in some situations, considering what would happen to your property and money if an impending marriage were to end in divorce would be the wise thing to do. California is a “community property” state. That means that everything acquired by either spouse during marriage is presumed to be “community property.” This means that at the time of a divorce, everything acquired during marriage will likely be split equally, including property, businesses, retirement assets, bank accounts, and debts. In most cases, spouses also owe each other a duty of support following marriage, at least until the other spouse can become self-supporting. While these results may not be undesirable for some, for others, including those who are older and more established, have already been married, have significant assets and/or earn a lot of money, it might be prudent to consider a prenuptial or premarital agreement, or as it is commonly called a “prenup.”

As part of a prenup, parties can agree to keep all of the property and earnings he/she owned prior to marriage separate. They can also agree to keep any property and earnings they may acquire during marriage separate. Additionally, it is permissible to limit the payment of spousal support or to even cut off a party’s right to receive spousal support at all. However, contrary to popular belief, a prenuptial agreement will not be valid if it attempts to limit the payment of child support in any way. Simply put, parents cannot bargain their way out of their legal responsibility for supporting their minor child(ren).

Prenups can be extremely powerful and if drafted and executed properly, will most often be enforced by California courts. However, there are very specific procedures that need to be followed to ensure that a prenup will withstand a challenge in court. If you are considering a prenuptial agreement or have been presented with one by your soon to be spouse, it is imperative that you seek legal advice. Similarly, if you are facing a divorce and a prenuptial agreement was signed at the time of marriage, seeking legal advice as to whether the agreement is valid is extremely important. At Argyris Mah, LLP, we can provide you with sound legal advice no matter what issues you have surrounding a prenup. Call us to schedule a free telephone consultation at (408) 564-5674, and we would be happy to explain your rights and the possible ramifications with respect to your prenuptial agreement.