Young Couples and Prenups

In the past, prenuptial agreements or prenups were considered taboo, but millennials are changing that reputation. Millennials are waiting longer to get married than earlier generations and may be entering the marriage with assets they want to protect in the event of divorce. According to a report from the Pew Research Center, millennial couples may be more cautious about protecting their finances upon getting married.

As a millennial, you may be concentrating on building your career and becoming knowledgeable about what assets and income will be in your future. More importantly, you want to protect those assets. If you are interested in a pre-nuptial agreement, consult with a Sacramento family law attorney or visit https://sacramentofamilylawlawyers.com. A local attorney with experience drafting and reviewing prenuptial agreements can help you enter into marriage with a clear agreement for property division in the event of divorce.

Prenuptial Agreements in California

In general, a prenuptial agreement is a private agreement between fiancés signed before they get married, which details the division of assets in the event of divorce or death. A prenup can also address the terms for alimony should a divorce occur. It is important to understand that a prenuptial agreement cannot provide for or limit child support or child custody rights. The prenuptial agreement has to be fair, the parties have to disclose their assets fully, and in the state of California each spouse will also need to have their own family law attorney.

Prenups can state that any assets brought into the marriage remain that person’s separate property or that assets earned by the couple during the marriage are marital property subject to division. Additionally, full disclosure is required by both parties of their assets, present, and future, such as a likely inheritance. Circumstances dictate fairness in a prenuptial agreement and are dependent on the unique facts and circumstances surrounding each couple.
Timing is another crucial factor when it comes to a pre-nuptial agreement. It is best to bring up or present your future spouse with a prenup months before the marriage so that both parties have time to review and come to a fair agreement. This is important as any hint of unfair play can invalidate your prenup.
Most prenups are drafted so that in the event of your death, you can leave your separate property to whomever you choose while requiring some provisions for your spouse. For example, your estate plan can state which of your assets you want to leave to other family members, friends, and charities, etc., but it will still need to provide sufficiently for your spouse. A family law attorney can advise on what rights a surviving spouse has in addition to a prenuptial agreement.

Although prenuptial agreements are becoming more commonplace, especially among millennials, it is important to receive appropriate legal advice. Consult with a California family law attorney to get legal advice on how to protect your assets fairly and legally.

Child Custody Factors

Child custody determinations may seem like a straightforward process, but it can actually be an exhausting series of court hearings and family issues. This is especially true when both parents have their own issues towards each other. There are many factors to be considered in these proceedings – some are open and shut cases, while others can drag on for a long time. Thus, the court follows one strict legal standard when dealing with this matter: The best interest of the child.

It can be quite tricky to determine what the best interest of the child is, as it is a broad range of many different factors. It ranges from emotional, to physical, to psychological, and even from past, to present, to future circumstances. At this point, the court turns to the Family Code for guidance, wherein it is provided under Sec. 3011 that the following factors must be considered in making a determination of the best interests of the child:

(a) The health, safety, and welfare of the child;
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:

  • A child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary;
  • The other parent;
  • A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
  • (c) The nature and amount of contact with both parents;
    (d) The habitual or continual illegal use of controlled substances or alcohol of either parent;
    (e) Any other factors the court finds relevant.

    Health, Safety & Welfare

    The health, safety, and welfare of the child is always the top priority of the court. Is is a given fact that the custodial parent must be fit to raise the child in a healthy environment and ensure his safety at all times. These types of proceedings are done by the court to guarantee the well-being of the child and that whichever parent or guardian he ends up with will be capable of raising him well. The ‘best interest’ standard allows the child to live the most comfortable life he could possibly have, given the circumstances.

    Abuse

    History of abuse by any person seeking custody is also a consideration in custody determinations. The history of abuse does not only refer to physical abuse against the child whose custody the person seeks, but also to other types of abuse against other children to whom they are related to or is responsible for. The court also checks for history of abuse against the other parent, the person’s current spouse or cohabitant, parents, or partners. Ultimately, the court must secure the child’s safety by doing its best to predict and eliminate the possibility of child abuse.

    However, although there is a reasonable presumption that the person alleged to have a history of abuse will not be granted child custody, such is not always the case. In cases where the court decides to grant child custody in favor of the said person, the court is required to state its reasons on the record or in writing.

    The nature and amount of the child’s contact with both parents is also weighed by the court. The court must consider the type of relation the child has with both parents and whom the feels most comfortable with. This may be measured through the quantity and quality of time spent with either parent. Parent-child relationship plays a big part in custody determinations because in cases where both parents are fit to care for the child, the court must take into account the kind of relationship they have with the child and consider that for the latter’s comfort.

    History of alcoholism and drug abuse also plays a vital role in custody determinations. A parent with a history of alcoholism or abuse of illegal substances may be deemed unfit to care for the child, especially if proven that the said abuse is ongoing. As this is an easy claim to make, drug or alcohol testing is usually done to settle the issue. However, the court requires substantial evidence before acknowledging such allegations of abuse.

    Aside from these factors, the court may take into consideration other things it may deem relevant to the matter at hand. Every Sacramento family law case is different and unique in its own way thus, the court has the discretion to have a thorough assessment of every situation before rendering a decision. If, after the proceedings, the court deems both parents unfit to raise the child, it may explore other options that would be best for the child.

    How The Sacramento Family Court Decides Child Custody

    When the court makes child custody determinations it rules based on the best interests of the child. The best interest of the child is defined as the fluid standard that seeks to “maximize the child’s opportunity to develop into a stable, well-adjusted adult.” (In Re: Adoption of Matthew B., 1991). There is no fixed set of rules to govern the decision process, however the court has certain guidelines when determining the best interest of the child.

    • The child’s health, safety, and welfare.
    • The nature and the amount of the child’s contact with both parents.
    • History of drug or alcohol abuse.
    • History of abuse
    • Any other factors the court deems relevant.

    The court determines the best interest of the child objectively from the child’s stand point. The feelings of the parents are only relevant if they affect the child’s best interest.

    The child’s health, safety, and welfare

    This pertains to the physical and emotional well-being of the child. The courts examine the ability of the parent to provide the proper nourishment and health care for the child, and the parent’s ability to ensure the child’s freedom from harm inside and outside the household. The court also considers the parent’s capability to provide the best environment for the child’s mental development, emotional stability and psychological health.

    The nature and amount of the child’s contact with both parents

    The court determines the nature and the amount of contact that the child has with either parent. This is to ensure that the court grants custody to the parent or parents that emotionally connect with the child. Close parent-child relationships are linked to the healthy development of adolescents, and eventually, adults (Longmore, et al, 2012). It also provides the Sacramento family court with the opportunity to determine readiness and willingness of the parents to shoulder the rigors and responsibility of rearing the child.

    History of drug or alcohol abuse

    The Sacramento family court also considers the parent’s history of alcohol and drug abuse, if any. A parent who has a history of substance abuse may not be in the best position to raise a child and may affect the child’s health, safety and welfare. Evidence of such abuse may be taken from police reports, law enforcement agencies, medical reports or even eyewitness testimonies.

    History of abuse

    Abuse is the non-accidental infliction of physical, psychological or sexual harm against another. The courts seeks to unearth any history of abuse from one parent or any other person seeking custody against (1) the natural child (2) A child under their care even if temporarily, (3) The other parent, (4) A partner to whom he or she has dating relations with or, (5) the ascendant of the other parent. In the court’s view, an abusive parent can threaten the health, safety and welfare of the child. When one parent is found to be abusive, there is a presumption under the family code against awarding custody to the domestic violence perpetrator.

    Due to the volatile nature of child custody cases there is also a danger of one parent making false child abuse allegations against the other parent. If the allegations are proven false, the alleging spouse may be held responsible for perjury and the act may damage their ability to gain child custody.

    The court decides whether to give joint or sole custody over the child based on the best interest of the child standard and its multi-factored inquiry. However, the list is not exclusive, and the enumeration is not rigid. The defect in any of these factors does not automatically mean that one parent will lose custody. All these factors are taken in totality. Every case is unique and different where every factor and circumstance must be scrutinized by the court to reach a just and proper decision.

    While this article pertains to the Sacramento family court’s standard for determining child custody, any family court in California is guided by the same. Whether the family court is located in Roseville or Sacramento, the best interest of the child standard will guide the court’s reasoning.

    Options for Raising Children After Divorce

    Co-parenting After a Divorce

    Although not a new idea, the use of co-parenting counseling in divorce cases continues to increase. Some Guardian Ad Litems (persons appointed by the court to represent “the best interests of the child” in court proceedings) will request co-parenting counseling as a part of the divorce proceedings.

    It has also been shown that co-parenting after divorce can benefit the children. Successful co-parenting can be beneficial to a child’s social and emotional development, including the child’s behavior, academic achievement and psychological well-being.

    Counselors are involved in co-parenting to ensure that the parents are communicating in a positive and effective way. The goal for co-parenting is to help parents maintain an amicable relationship for the sake of the children.

    Fathers Raising the Children

    Women continue to focus on careers after finishing school in lieu of starting a family. These career oriented women are waiting to get married and have children later in their careers. As a result, many women have become the main providers and will return to their careers shortly after their children are born. The need for childcare in this situation may cause some families to rely on a stay-at-home-father to raise children. In a divorce, this can give the father the leverage he needs to get custody and additional visits with the children.

    In many ways this is a positive trend as a relationship with both parents, as opposed to being raised mainly or even solely by a mother after divorce, is usually in the child’s best interests.

    Relatives Raising Children

    Millions of children are being raised by their grandparents or other relatives. According to an article posted on pewtrusts.org (a global research and public policy organization, dedicated to serving the public) the number of grandparents who are raising their grandchildren is going up and increasingly it’s because their own kids are addicted to heroin or prescription drugs, or have died from an overdose. For some, it’s a challenge with little help available. In 2005, 2.5 million children were living with grandparents who were responsible for their care. By 2015, that number had risen to 2.9 million.

    Grandparents are also raising their grandchildren due to abuse, neglect, mental health issues, domestic violence, incarceration and death of parents. Studies have shown that children adapt better in family guardianship rather than being taken in by Child Protective Services and placed with foster families. Children who are raised by their grandparents, short or long term have fewer placement changes and behavioral problems. Additional benefits include increased likelihood of keeping siblings together, decreased likelihood of runaways and increased emotional bonding.

    Regardless for your family situation, a consultation with a local family law attorney can help you make the best decision for your family and circumstances. Understanding your legal rights and obligations will help you get through unusual family arrangements when it comes to child custody.

    Factors that Affect Spousal Support

    In some divorces the judge will order one of the former partners or spouses to pay a certain amount of money to the other as financial support. This payment is known as “spousal support.”  In the case of domestic partners this payment is known as “partner support.”  A joint term used for both types of arrangements is “alimony” but people rarely use it.

    There is no fixed formula for calculating spousal/partner support in Sacramento Family Court. However, a number of local courts use a formula to calculate an amount for spousal/partner support. In most cases, the judge takes a number of factors into consideration to determine this amount. These include:

    • The duration of the relationship/ marriage
    • What each of the parties requires, in terms of money, to retain certain living standards. The standard of living should be similar to how they lived while married or in a domestic partnership.
    • The amount of money each party spends or can spend (this includes current income, as well as capacity to earn) to retain the same lifestyle they sustained during the domestic partnership or marriage.
    • Which of the partners is keeping the children
    • Whether it would be difficult to attend to the children if one of the former partners or spouses takes up a job
    • The health condition of both parties, their current age and whether any of them has a health concern such as a heart problem or diabetes
    • If the former spouses or partners own any property or have a debt
    • If one of the parties helped the other in some way during the domestic partnership or marriage. This could be in the form of helping them get training for a job, education or license for a profession.
    • If there is a history of domestic abuse between both former partners or spouses. Alternatively, if one of them was abusive towards the other.
    • A spouse is unable to provide for their support due to staying at home to take care of the kids. 
    • How taxes would influence the amount of spousal support.

    Once the judge determines the amount of partner or spousal support, he or she will provide the details in the final draft of the judgment or spousal, partner or family support order attachment. These details also include the factors the judge considered when determining the amount.

    Splitting Up but Staying Together After Divorce

    California couples who have tried to make their marriages work but have been unsuccessful typically file for divorce and move on with their lives. However, when children are involved or finances limited, moving on may not be the best option. This is why the family law trend of splitting up but staying together is continuing in a tight housing market with increasing rents.

    A New Family Trend

    The concept of splitting up but living together is a trending family law topic; so popular that is being showcased in the television show “Splitting up Together.” This reality show follows the life of a couple who decides to divorce but remain living in the same property.  Basically, each adult taking turns living in the house for a week, while the other stays in the garage apartment. The parents chose to do this because it keeps the children in their home. It also gives the parents additional time to pay down their mortgage and acquire the funds necessary to divide households.

    Numerous couples find themselves in a financial crisis after a divorce. When a family home is at stake, the timing of divorce and the ability to sell the property does not always line up perfectly. Parents also must consider what is best for their children. Keeping children in the family home may be the ideal scenario for some parents.

    Parenting Marriage

    According to an article in Psychology Today, more and more couples are turning to the parenting marriage option as a way to “stay for the kids” without staying stuck in a relationship that no longer works. The article described parenting marriage as basically changing your job description from lover, best friend, and co-parent to co-parent first and foremost, friends maybe, and lovers no longer. Both parents have to agree to respect each other’s privacy and be able to accept that they will have romantic relationships with other people.

    To Split or Stay

    Splitting up but staying together to a degree can be a workable solution. Some divorced couples with a shared goal can and do make it work with a lot of effort. At the end of the day, it all comes down to the ability to co-exist with the other parson in the same household. Individuals in California who are considering divorce can turn to a family law attorney to discuss all of their options for property division and custody arrangements. With help from a family law attorney, the ideal settlement can be reached and a plan to move forward put in motion. 

    Filing Chapter 7 Bankruptcy in Sacramento? Here’s What You Need to Know.

    Chapter 7 bankruptcy is the most popular form of bankruptcy in Sacramento. For many people chapter 7 bankruptcy is cheap, eliminates significant debt and only takes a few months to complete.  However, before filing chapter 7 bankruptcy in Sacramento there are a few things to know.

    You Can Lose Property

    Property that can’t be protected in chapter 7 bankruptcy using State or Federal exemptions can be sold by the Trustee.  Also, people who file chapter 7 bankruptcy usually cannot dismiss their case to protect property the Trustee intends to sell.  In other words, once a chapter 7 case is filed any property that can’t be protected using bankruptcy exemptions is vulnerable to sale.  To make sure that your property will be protected in chapter 7 bankruptcy consult a local attorney.

    Bankruptcy Costs More Than Attorney Fees

    As discussed in “How Much Does A Sacramento Bankruptcy Attorney Cost?” the total cost of chapter 7 bankruptcy is greater than attorney fees.  Apart from attorney fees clients often pay the $335 court filing fee before filing or through a 4 month installment plan.  In addition, clients may have to pay for credit counseling, a credit report and tax transcripts.  However, some attorneys quote a flat fee that covers some or all of the aforementioned items.

    You Can’t Fall Behind on Your Mortgage or Car Payment

    If you want to keep your home or car don’t stop payments before or during your chapter 7 bankruptcy.  If you fall behind you may be in default, and while the creditor can’t sue you personally (assuming you get a discharge), they can repossess/foreclose on the property in which they have a security interest.

    Attorney Fee Payment Plans Rarely Work Out

    Say you find a professional Sacramento bankruptcy attorney who says that based on your income over the past 6 months you qualify for chapter 7 bankruptcy.  This attorney quotes $1,500 and you can retain for no money down; you’ll just pay $100 a month for 15 months.  The problem?  You can only file chapter 7 bankruptcy after the $1,500 is paid in full.  Furthermore, there’s no guarantee that you will still qualify for chapter 7 bankruptcy by the time the attorney is paid.  Likewise, if a creditor sues, garnishes your wages, etc., and you need to file right away, the attorney isn’t obligated to file your case until he’s paid in full, and if you switch attorneys or decide to not file you probably won’t get a refund.  Accordingly, the safest course of action is to find an attorney you can afford to pay in full on day 1.

    -By Adam Garcia 

    Automotive License Defense in California

    When California Automotive Repair Shops or SMOG stations receive a legal document titled “Accusation” they are being served with a formal written statement detailing the regulatory violations upon which the licensing authority is seeking to revoke their BAR license.  The Accusation serves as a pleading and is the first document filed in BAR license revocation cases.  Once received, the Auto repair shop or SMOG station has limited time to respond by filing a Notice of Defense.  If a Notice of Defense is not filed the Auto repair shop or SMOG station is deemed to have waived their right to a formal administrative hearing and a default decision revoking the BAR license will normally follow.

    Auto Defense Attorneys

    After receiving an Accusation many Auto Repair Shops or SMOG stations who want to defend their license will call an Automotive defense attorney who will file the Notice of Defense, request discovery and represent the auto repair shop or SMOG station at the formal administrative hearing.  In essence, the automotive license defense attorney will serve as an advocate through settlement negotiations and at the formal administrative hearing.

    Fees

    Attorney fees are a significant concern for Auto repair shops and SMOG stations defending their license.  Many attorneys charge a retainer fee and bill by the hour.  As a result, every monthly bill will vary and the client may run out of money before the hearing.  Fortunately, some attorneys charge flat fees.  In a flat fee billing arrangement the attorney will charge a fixed amount for representation regardless of the amount of work required to resolve the case.

    Can Probate in California Be Avoided?*

    Probate can be overwhelming, costly, lengthy and stressful without the help of an attorney. The last thing anyone wants to do is leave their loved ones with the burden and stress of administering their estate, distributing assets and paying debts. If the decedent had a Will and Trust in place when they passed, or if the title of their assets were held in a certain way, Probate can essentially be avoided.

    Typically, Probate needs to be opened if specific assets do not have a designated beneficiary, the value of the estate is more than $150,000 or if there are any questions as to the identity of potential heirs or beneficiaries. Determining the value of the estate is the gross fair market value of the estate (all real property, personal property, stocks, bonds, vehicles, etc.) and only includes the decedent’s share of community property. For example, if the decedent was married and the only property they owned was a house valued at $200,000, the rules for community property dictate that the decedent’s estate be valued at $100,000 as his or her spouse would be entitled to their share of the community property and a Probate case would not need to be initiated.

    If bank accounts, vehicles and real property are held jointly and are titled in a way such that they are transferred to someone else upon death, Probate can potentially be avoided. When retirement accounts, life insurance benefits, annuities and sometimes bank accounts are initially opened, a “Pay on Death Beneficiary” is named. When the decedent passes, those accounts will automatically transfer to the designated payee and doing so avoids the Probate process.

    *NOTE: This is a guest post & has not been reviewed by an attorney.  The information posted here is general information and not legal advice.  Do not rely, act or refrain from acting based on the information contained in this post.

    How to Successfully Complete a US Student Visa application (also known as the F-1 Visa)

    Knowing what to expect from the Student Visa application can save you time and money in the long-run. If you are looking for general information on how to complete the Visa application, you have come to the right place!  However, if you need a Student Visa you should hire an immigration attorney.

    The first step to completing a F-1 Visa application is to apply to successfully apply to an American University and to receive an offer from that University. Once you have received an offer, you are halfway there!

    The next step is to ensure that you have the financial means to support yourself while you are studying in the US. American colleges and Universities tend to be a lot more expensive in comparison to other countries, and knowing the costs of your education will ensure that you can meet the requirements of the Visa.

    Once you have received your offer and you can prove that you can financially support yourself (with either a sponsor, bank funding, government student loans, educational bonds, trust funds, or other means), the rest of the application is a piece of cake!

    The rest of the application requires the application fee, photos (to the application’s specifications), a valid passport that has more than a 6-month expiry date window, and a completed DS-160 form (you would also need to complete the DS-157 form if you’re male).

    Once you have submitted all of the required documentation, you will be requested to attend an interview for the F-1 Visa if your application is accepted. Once your interview has been approved, your F-1 Visa is granted!

    Tips to keep in mind:

    • Research the school you want to attend well in advance of your application
    • Keep your grades at a high academic standard
    • Ensure that you complete the DS-160 form completely and accurately
    • If you are unsure of how to complete the DS-160 form, request help from a certified legal professional
    • Prepare yourself well in advance of the interview
    • Actively pursue grants and scholarships if you have concerns over how to pay for your education
    • Keep up to date with your contact information and communicate with your school when any information needs to be updated
    • If your F-1 Visa has been granted, ensure that you do not work off-campus, or it could lead to serious consequences for your Student Visa and future entry into the United States