San Jose Divorce Lawyer Blog

Children of the Digital Age: Family Vlogs and the Rights of Children

March 23, 2022 | by Arlette Argyris

In the last five to ten years or so, we have seen the creation and rise of social media influencers on the World Wide Web. These people sell products, tell their stories, and create content for viewers of all ages. Social media influencers are prominent across all platforms, but tend to be the most prevalent on Facebook, Instagram, TikTok, and Youtube.

Most social media sites have terms and use agreements with age restrictions for creating an account. On most social media sites, the age of consent to make an account is around 13. For grown adult influencers making accounts for their families to share their journeys and stories, this is no big deal. However, for the babies, toddlers, and preteens that these parents’ film, it could be.

On some social media sites, such as TikTok, content creators make a certain amount of profit for every person over a certain threshold that watches their videos. For example, a content creator could make .10 cents for every person who watches their video while scrolling after 100,000 people have already watched. Now, while 100,000 views seem like a lot, that number is nothing when you consider that popular TikTok videos get over one million views in less than a day.

Carrying Your Partner’s Student Loan Debt After Divorce

February 15, 2022 | by Arlette Argyris

As most people are aware, student loan debt is crippling people across the country. Many borrowers are strapped with high interest rates on their principal loans that essentially never allows the owing amount to decrease. However, could you imagine being bogged down by your own debt in addition to the debt of a spouse you were divorcing? This is a reality for many borrowers who consolidated their loans through a Department of Education program for married couples back in the early to mid 2000’s. The perks for consolidating loans for married couples were amazing, the couple only had one payment per month instead of two at a much lower interest rate.

However, when the housing market of 2008-2010 began and everyone lost their jobs, marital strife was high and divorce rates were even higher. What couples going through divorce at this time were now finding out was that the consolidated loan they signed up for was not particularly easy to split. More than 14,000 people participated in this program, which the federal government closed officially in 2006. For many, it seemed like a straightforward idea at the time, but what these borrowers couldn’t foresee was a program that had no way to disentangle the consolidated debts.

One particular borrower took to Congress to change this completely misguided approach to helping borrowers. Patrick Stebly has been stuck in this situation since his divorce in 2013 and has been working tirelessly over the past five years to rectify the situation for every other borrower. Stebly’s advocacy has now prompted legislative action. A new bill introduced by Senator Mark Warner of Virgina and Representative David E. Price of North Carolina, would allow joint loans to be split proportionally based on original loan amounts for those going through divorce or suffering domestic violence. The bill was first introduced in 2017.

Who Gets Custody Of The Fur Babies?

February 9, 2022 | by Arlette Argyris

Pets are an essential part of any family. After all, dogs are considered man’s best friend. For a lot of newlyweds, the idea of getting a dog or a cat before having children is ideal for several different reasons. Firstly, it can be used as a test to gauge if the couple can seriously care for another living being together. Secondly, owning most pets requires people to give up a significant amount of free time for training and extra cash for toys, food, toiletries for the pets, etc. Pets are considered the predecessor to children in the world of marriage.

So, what happens to the fur babies when a couple decides to call it quits and get divorced? Pet custody can become a huge point of contention during the mediation and settlement stages of any marriage. On January 1, 2019, California enacted Family Code Section 2605, a law that aims specifically at dealing with the ins and outs of “pet custody.”

Under Family Code Section 2605, judges are given the power to determine who gets ownership of the pets based on what is in the pet’s best interest. Prior to the enactment of this law, pets were treated as community property assets, needing to be divided between divorcing parties. This is the same kind of mentality that goes into splitting assets such as the tv, cars, joint bank accounts, etc. In most cases, whoever purchased, rescued, or primarily cared for the pet typically won ownership. However, picking the parent who won the pet was always discretionary as there was no clear-cut criteria for determining who was more fit to take care of the animal.

The Truth Behind “Divorce Month”

January 6, 2022 | by Arlette Argyris

We often hear it in polite chatter: “Have you heard? So and so are getting a divorce! Oh, well you know, it is that time of the year again.” Phrases like these are normally passed around at social and familial gathering throughout the year, but there is one time of the year where they pop the most, the winter holiday season.

We’ve all been there: traveling back to our hometowns, seeing our old friends, and breaking bread with our close, yet somehow distant, relatives over the span of Thanksgiving through the New Year. Single people get hounded with questions about why they aren’t married, newlyweds get bulldozed with questions about why they don’t have children yet, and seasoned veterans to marriage get peppered with questions as to when the second baby is coming, or why a new house hasn’t been purchased yet.

However, amongst the nosy, highly inquisitive family members are the salacious gossips of the family. Those who report back with details of other absent family members and why they aren’t at the various holiday gatherings. A big topic of continual gossip? Divorce. Many consider the holiday season to be the precursor to divorce season. You are required to remain in close proximity to your spouse for months on end while simultaneously attending a myriad of social gatherings that both parties would probably rather not attend. More couples fight during this time of the year due to trivial issues such as gift giving and general holiday cheer.

Excellent Lawyers Deserve Higher Fees and Excellent Lawyers are Civil: A new CA Court of Appeal Case Lowers Attorney Fees by a Landslide for Bad Lawyer Behavior

April 27, 2021 | by Arlette Argyris

“Seasoning a disagreement with avoidable irritants can turn a minor conflict in a costly and protracted war. All of those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise these hostilities.” -Justice Wiley, Karton v. Ari Design & Construction, Inc. (2021)

Most of us have heard the saving “Civility costs nothing, and buys everything”, but in the case of Karon v. Ari, Karon’s lack of civility cost him quite a bit. In this case decided just as of March 2021, the CA Court of Appeal used its discretion to lower Karon’s attorney’s fees by $210,000, causing him to lose any sort of reimbursement for the countless hours he spent accumulating these fees on his own case.

The background of the case goes like this. Karton, Petitioner, hired a contractor who was unlicensed and uninsured. In CA, when a contractor fails to prove he has a license and insurance, CA will not protect that contractor if that contractor gets later sued in court. Meaning, if the contractor breaches their contract for not completing their work, they don’t only have to pay back for the work they did not complete, they have to pay back everything. Even if they completed most of the work and purchased all the supplies. This is public policy to discourage unlicensed contractors from entering into agreements.

To Vaccinate or Not to Vaccinate? (Is That a Legal Question?)

April 6, 2021 | by Arlette Argyris

At the start of COVID-19, we saw a plethora of new types of issues rise to the surface of family law issues. For one, there are no federal mandates regarding child vaccination, and it varies by each state.

Some vaccinations, like polio, tetanus, etc., are required to attend public schools, daycares and even many private schools, but there are several questions left unanswered regarding COVID-19 vaccinations and the future of the law surrounding this topic.

Although children under 16 are not yet eligible for any of the currently available COVID-19 vaccinations, it is clear that they will be in the near future. Vaccinations are already a sore subject for many American parents and within school systems, but when parents are separated or divorced, these issues can become even more chaotic and complex.

THREE WAYS YOU CAN GO FROM CO-PARENT TO PRO-PARENT

March 30, 2021 | by Arlette Argyris

As you know from our last blog post, Kim Kardashian and Kanye West have decided to finally separate and call it quits. However, one odd thing still circling the media is how amicable the two are being as they continue to raise their family together after their divorce. Both Kim K and Kanye share joint custody, like with many divorced couples, and this process always seems “straight-forward” and amicable until, well – it isn’t. So how do celebrities, with all their fame and publicity, get through the nasty, not-so-fun parts of co-parenting? More importantly, how can we emulate that in our own lives, even though our divorce “faux pas” may not be published on the front page of Us Weekly? Today, we are going to discuss three value systems that I believe are the cornerstones for co-parenting, and how we can apply these skills to become even better leaders for our children.

BOUNDARIES

While joint custody arrangements seem relatively simple, they are not always 50/50. That is because there are a lot of smaller concerns involved with co-parenting that do not get discussed: who will get the kids ready for school, missing out on your child’s Piano recitals, loneliness around the holidays, kids practicing favoritism, and other anxieties that often burden parents during these challenging times.

What We Can All Learn from Kim Kardashian and Kanye West’s Divorce

March 15, 2021 | by Arlette Argyris

2020 was not an easy year for many relationships. Studies show that the divorce rate in California alone has spiked immensely. Couples who normally had the security blanket of leaving for work every morning were now being forced to stay home, and dare I say it…. spend time together. This created a lot of problems for many relationships that were avoiding the inevitable. With couples having to spend 24 hours in the same home, many slowly began to realize that maybe their marriage wasn’t as harmonious as they once had believed. COVID-19 has profoundly expedited the end of many relationships and marriages. Divorce rates have spiked and it has never been a busier time in the family law community.

So, it’s no surprise that celebrities are following suit. Kim Kardashian West has filed for divorce, seeking to end a nearly seven-year marriage to Kanye West that seemed to be coming for many months. In the past few years, Kanye West has run for U.S. president with no political qualifications, followed by his admission into Los Angeles’s Ronald Reagan UCLA Medical Center for “observation after suffering from exhaustion”, according to Billboard Magazine. He has also made some unnecessary comments via social platforms like Twitter, making his manic episodes even more public and embarrassing.

According to Entertainment Today, the infamous couple are already in the process of reaching a property settlement agreement. When it comes to custody of their four children together, North, 7, Saint, 5, Chicago, 3, and Psalm, 1, Kim is asking for joint legal and physical custody, which Kanye agrees to. They are dedicated to co-parenting together.

I lost my job during the pandemic and I’m getting a divorce. Can I take money from my 401(k)?

January 13, 2021 | by Arlette Argyris

It is common for people to borrow against their 401(k) to have money for a down payment on a house and for people to take money out of their 401(k) in times of emergency. Since the pandemic started, it is even more common for individuals to withdraw money from their retirement funds due to the increase in job losses and furloughs. In fact, the CARES Act passed in March of 2020, Congress made it easier to withdraw from retirement accounts. So if you lost your job or lost hours/shifts during the pandemic or if you contracted the virus and was unable to work, it is possible that you will qualify for a withdrawal of up to $100,000 in the 2020 tax year. If you qualify, you won’t pay penalty taxes, but the withdrawals will affect your income tax bracket.^[1]

If you are in the midst of a divorce or if you plan on filing for divorce soon, taking money from your 401(k) can also have huge consequences for you in the future.

California is a community property state, which means that all assets and debts acquired during the life of the marriage are divided equally upon divorce. Generally, community property is everything that you and your soon-to-be ex own together, as well as all of the earning that either of you earned during the marriage and everything bought during the marriage. This includes any value of your 401(k) that has accumulated during the life of your marriage using contributions made by you while the two of you were still together. So at divorce, that value of your 401(k) will be split and half of it will be awarded to your soon-to-be ex at divorce.

I Found Out That My Ex Failed To Disclose An Asset During Our Divorce. Now What?

January 5, 2021 | by Arlette Argyris

If you are in the middle of a divorce and suspect that your soon-to-be ex is hiding assets from you, then it might be a good idea to hire a private investigator or a forensic accountant to get the bottom of things. It is much easier (and much more cost effective) to deal with the issue of hidden assets before the divorce is finalized, than it is to deal with it after. However, if your ex is successful in hiding their assets during the divorce and you don’t find out until after the divorce is finalized, then you can file a motion in the court where your divorce was filed to reopen the case.

At divorce, both spouses are required to disclose all of their assets regardless of whether they are separate property or community property. California is a community property state, which generally means that all debt or earnings made during the marriage belong to both spouses equally and any property or debt acquired before the marriage is separate property. While there are some exceptions to the general rule, such as if one spouse receives an inheritance during the marriage which is seen as that spouse’s separate property, most assets received during the marriage are seen as belonging to the community.

If your ex failed to disclose an asset before the divorce was finalized, the remedies you are entitled to, in part, depend on whether your ex hid the asset intentionally, with a conscious disregard for your rights, or with the purpose of subjecting you to a cruel or unjust hardship.^[1] During marriage and at divorce, spouses owe each other a fiduciary duty. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding all assets in which the community has or may have an interest and debts for which the community is or may be liable, to provide equal access to all information regarding those assets and debts, and the duty to not take unfair advantage of one’s spouse.^[2] So if your ex hides an asset during the divorce, they have breached their fiduciary duty.