San Jose Divorce Lawyer Blog

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.

Prenuptial and Postnuptial Agreements in the COVID-19 Era

January 4, 2021 | by Arlette Argyris

Earlier this year, after the Coronavirus outbreak happened, a survey of engaged couples found that over 60% of them had decided to postpone their wedding plans.^[1] While the initial shock of postponement is a bit depressing, the additional time taken to plan one’s wedding provides the opportunity for a couple do decide whether to enter into a Prenuptial Agreement.

Many people are suffering through financial difficulties caused by job loss and new lifestyle changes due to lack of in-person schooling for both children and adults. We have found that these sudden changes have caused many couple’s marriages to break down and has led to the increase in divorces this year. Although entering into a Prenuptial Agreement doesn’t sound romantic, it can help you and your soon-to-be life partner have a long-lasting marriage that does not end in divorce.

California is a community property state, meaning that all property acquired after a marriage with community funds (such as a paycheck) belongs to both spouses equally. Any property or debt owned prior to the marriage or bought after the marriage with money from the sale of property owned prior to the marriage, is property that is owned by each spouse as their separate and sole property. A prenuptial agreement or a “prenup” allows couples to agree to keep any property and earnings acquired during the marriage as separate property and even allows couples to limit the amount spousal support a spouse is entitled to in the event of a divorce.

Kelly Clarkson Gets a Big Win in Her Divorce Case

December 14, 2020 | by Arlette Argyris

In a new interesting turn of events for the Kelly Clarkson and Brandon Blackstock divorce, a judge in Los Angeles County just awarded Clarkson primary physical custody of the former couple’s two children, River Rose, age 6, and Remington Alexander, age 4.

Kelly Clarkson filed for divorce from her husband of nearly seven years in June of this year, citing “irreconcilable difference.” Blackstock reportedly wanted the children to move back and forth between Blackstock’s family ranch in Montana, where he will be living, and Clarkson’s home in Los Angeles, where the children are currently residents. However, the court was not so willing to grant Blackstock’s request.

In the court order that ultimately ordered that Clarkson be awarded primary physical custody of the children, while both parents will have joint physical custody and joint legal custody, the judge found that “under the circumstances present in this case, the interest in providing stability and continuity for the minor children weighs in favor of [Clarkson] having primary custody.”^[1] It is relatively common for the court to order that the primary custody be with one parent when one of the parents is moving away, especially in situations such as this one where the parties have an extremely difficult time co-parenting. Blackstock was still awarded weekend visits and a portion of holiday visits with the children, but the children will primarily live in California.^[2]

UPDATE: How Travel Affects Your Custody Arrangement

December 4, 2020 | by Arlette Argyris

On November 28, 2020, the Department of Public Health in Santa Clara County made the decision to issue a 14-day quarantine requirement for all persons entering Santa Clara County from travel of more than 150 miles away. The order went into effect on November 30, 2020 at 12:01 a.m. and will remain in effect until at least December 21, 2020 at 5:00 a.m., unless the order is extended. Although, the Department of Public Health Directive did not specifically state whether children returning from a parent’s home that is 150 miles or more from the parent living in Santa Clara County are exempted from this requirement, the most recent update from the Department of Public Health, issued on December 2, 2020, provides that “Persons who are otherwise required to quarantine pursuant to this Directive may leave their household or place of quarantine to the extent necessary to comply with a court order or make an appearance in a court of law or administrative proceeding.” What this means is that if you and your child’s other parent live 150 miles or more away from one another and one of you lives outside of Santa Clara County, you are permitted to continue following the schedule set by your child custody and visitation order.

For example, let’s say you live in Santa Clara County but your child’s other parent lives in the city of Fresno, which is 150 miles from Santa Clara County. When your child returns to your home in Santa Clara County from their other parent’s home in Fresno, they will be required to quarantine for 14 days. If you have joint physical custody and your timeshare schedule, as set by your child custody and visitation order, gives you physical custody from Saturday at 8:00 PM to Wednesday drop-off at school, and gives your child’s other parent physical custody of your child from Wednesday pick-up from school till 8:00 PM Saturday night, then in order to comply with your child custody order your child would have to leave their place of quarantine before the 14 days are up. Under the most recent update from the Department of Public Health, this is completely permitted.

However, while your child is at your home in Santa Clara County, they will be required to stay at home at all times with very few exceptions. If you need to take your child to the doctor, hospital, or any other Healthcare Facility, the Public Health Directive allows your child to temporarily leave their place of quarantine. Of course, if your child starts to show symptoms at any time, get them tested immediately and if your child comes up positive for Covid-19, do your best to work with the other parent to agree to a temporary schedule change that accommodates the 14-day quarantine requirement.

How Holiday Travel with Your Children During the Pandemic Could Impact Your Child Custody Case

November 20, 2020 | by Arlette Argyris

Sharing a child or children between two households during the holidays can be particularly stressful in a normal year because everyone wants to be able to spend time with their family. However, this year is a little different due to COVID-19, not only because it may be months since someone has last seen their family members, but because of the risk that you or someone you love may contract the virus by spending time together during the holidays. Going to family members’ homes is strongly discouraged by public health authorities because close contact with other households and closed environments are known to facilitate secondary transmission of COVID-19.^[1] Even with the risk, you and your child’s other parent may not agree about how to protect yourselves from the virus during the holidays, meaning that the other parent may be okay with taking your child to their family’s house for the holidays while you may not be.

Although you may disagree with your child’s other parent’s choice to put themself and your child at risk by going to a holiday event, it is very important that you abide by all current custody and visitation orders that you may have in place. Generally, each parent is permitted to travel during the holidays, regardless of whether the other parent agrees, unless the custody order specifically prohibits out-of-state travel or provides other restrictions. This means that if you prevent the other parent from taking your child during a holiday during which they have custody, you risk being held in contempt for violating the court order.

However, if one parent violates the state Public Health orders by congregating with more than three households or refuses to put masks on your children that are over two years of age while congregating with other households, it is possible to request a modification of the child custody order. In order to request a modification of the child custody and visitation order, there must have been a change in circumstances since the order was made. If one parent is willfully putting their child’s health at risk by taking them to public gatherings without taking any precautions or in direct violation of orders from the California Department of Public Health, and the orders were made prior to the Pandemic, such circumstances may be enough for the court to grant a modification. Note that doing so should not be done simply to harass one parent and stop them from seeing your child. If parents are taking proper precautions by following CDC guidelines^[2] and the mandates^[3] set forth by the local and state public health officers, then there is likely no justification to request a modification.

5 Ways to Survive Divorce During a Pandemic

November 3, 2020 | by Arlette Argyris

5 Ways to Survive Divorce During a Pandemic

In a normal year, when people aren’t facing a deadly virus, record wildfires, civil unrest, and skyrocketing unemployment, going through a divorce is difficult both emotionally and financially. Adding extra difficulties into the mix of a divorce is enough to make anyone feel overwhelmed. However, if you are unhappy or unsafe in your marriage and you feel it is the right time to get divorced, it is possible to make it through the process. The five tips below will hopefully help you survive a divorce during a pandemic without losing your sanity and your money.

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How To Move Your Divorce Along

October 22, 2020 | by Arlette Argyris

One of the most frequently asked questions people have about going through a divorce is “how long will it take?” The answer is, it depends. Certainly, no one wants to go through a divorce that’s going to drag on for years, and family law attorneys want divorces to move along smoothly and quickly as well. However, there are several things parties can do to help their matter keep moving forward.

Let go of the “principle” and be willing to compromise. Sometimes, parties become so fixated on “winning” or their spouse “losing” that they can no longer see the forest for the trees. For example, one party decides they are bent on keeping the old family couch just so that their spouse can’t have it (even though it may have no significance to them at all). This is usually accompanied by attitudes along the lines of “it’s not the actual [insert item here] I care about, it’s the principle of the matter”. These types of thoughts and feelings are a surefire way to slow a case down. However, generally, there is room to compromise in every family law case; once a party sets aside their negative feelings and is willing to work towards a compromise, it really helps move the matter along.
Try meeting face-to-face. Having a meeting with the other side, their attorney, and your attorney can often move things along. Typically known as a four-way meeting or conference, these meetings used to take place in person, often at one attorney’s office. Though a little more difficult given the current pandemic, a four-way meeting can still take place through video conferencing. A four-way meeting is often helpful because it allows the parties and attorneys to have discussions about the issues in real time, unlike when sending letters, emails, or documents back and forth, and then having to wait for a response. The parties and their attorneys can then go through a list of all the outstanding issues in their matter and work through different proposals and solutions. A good approach is to start out with smaller issues that can be easily resolved first, and then move on to more complex matters. That way, if the parties aren’t able to come to an agreement on a harder issue, they won’t feel defeated right at the outset of the meeting. Another way to ensure a four-way meeting is successful is to keep in mind that a four-way meeting is an opportunity to settle as much as possible and to go into the meeting prepared to compromise.3

Celebrity Divorces In 2020

October 2, 2020 | by Arlette Argyris

As we all know, 2020 has been a strange and crazy year so far. On top of a new pandemic, riots, and fires, some couples are also going through a divorce, and celebrities are no exception. From reality TV stars to country singers to social media influencers, here are some of the celebrity couples who have called it quits in 2020:

Cardi B and Offset

US Weekly and TMZ confirmed on September 15 that Cardi B has filed for divorce from Offset after nearly three years of marriage, having secretly wed in 2017. According to court documents filed in Atlanta, Cardi is seeking primary legal and physical custody of daughter Kulture, who she welcomed with Offset in July 2018.

Payment of College Expenses Following Divorce

September 23, 2020 | by Arlette Argyris

Under California law, both parents are obligated to financially support their children until they reach the age of 18, or until they graduate if they are still 18 and in high school, whichever happens later. Except in cases of disability, California law does not contain provisions for adult child support, but as many parents know, adult children often have significant expenses they need help paying for. The most significant is typically the cost of college. Because child support terminates after a child reaches 18 (or graduates), child support will not cover tuition, room and board, books, and other college-related expenses in the large majority of cases.

Determining how (or if) you are going to pay for your child’s college education is hard enough for parents who are still married to one another. For those who are divorced, the decision is often even more complicated. Child support for a minor child is a financial matter, obviously, but the law sees child support as an entitlement belonging to the child—an entitlement that cannot be waived by either parent following a divorce. However, once the child is no longer a minor and is college-age, parents do not have a legal obligation to pay for their adult children to go to college. However, many parents do pay, and in a divorce it is understandable for each parent to want the other’s commitment to contribute to the costs of their adult children’s education. As with most other aspects of divorce, parties have a significant degree of flexibility when it comes to addressing the issue of their adult children’s college expenses.

One option that the parties may use to address the issue of their adult children’s college costs is to negotiate an agreement as part of their overall divorce settlement. Similar to an agreement regarding spousal support (or any other divorce issues), an agreement regarding college expenses should be clear on all of the key financial aspects as well as any limitations or conditions involved. For example, some considerations may include: