Bay Area Family Law Center Lawyer Blog

Who Gets What When Accidents Occur During A Divorce?

Published on: December 4, 2019 | by Bay Area Family Law Center

Accidents can happen at any time—house fires, car accidents, worker’s compensation claims, and injuries to life and limb, to name a few. A civil lawsuit or claim may continue for years after the injury. Sometimes civil claims arise while a couple is in the middle of a divorce. Which raises the question: How do California courts handle personal injury claims and insurance proceeds during a divorce?

If an ex-spouse has to file an insurance claim or personal injury lawsuit because of the mishap, it’s not easy to determine which spouse is entitled to a payout or where to turn to figure it out. If you have questions about how the court will divide your accident proceeds, here’s what you need to know about accidents, insurance, and divorce. For purposes of this article, an “Injured Spouse” and a “Personal Injury Award” includes injuries to property, such as houses and vehicles, as well as injuries to life and limb.

Automatic Temporary Restraining Orders Ensure that Upon Service of a Divorce Case, Neither Spouse Is Permitted to Remove or Cancel Their Spouse’s Insurance Policies.

How to Lower Child Support Arrears: Jackson Credits

Published on: November 8, 2019 | by Bay Area Family Law Center

California law does not allow retroactive modifications of child support orders. However, it does recognize what are known as “Jackson Credits” to resolve child support arrears cases. If you believe you are eligible for a modification of what you owe in support, here is what you need to know.

Jackson Credits Defined

Jackson credits arise when a non-custodial parent assumes full custody of a child but fails to file a motion to modify the underlying child support order, custody order, or both. If the non-custodial parent can prove that he provided a primary residence for the child, he can seek credit to reduce or eliminate the amount owed in child support arrears. The court’s rationale in awarding Jackson credits is that the non-custodial parent fulfilled his support obligation by providing a primary residence for the child.

California Court Discusses Grounds for Denying Reunification Services in Custody Cases

Published on: November 5, 2019 | by Bay Area Family Law Center

The California family law courts generally try to preserve parental rights, and in cases in which a parent is estranged from a child, they may order reunification services to help repair the parent-child relationship. In some cases, however, the court will find that reunification efforts will not be beneficial to a child, and will deny a parent’s request for reunification services. Recently, a California appellate court discussed when it is proper to deny reunification services in a case in which the mother sought reunification with her three children that were removed from her care. If you or the co-parent of your child have a strained relationship with the child and wish to seek reunification services, it is sensible to speak with a proficient California child custody attorney to discuss your rights.

Background of the Case

Reportedly, the mother and the father had two biological children. The parents were routinely investigated by child services due to issues with neglect and domestic violence. In 2015, at the end of the first dependency, the children were removed from the mother’s care, and custody was granted to the father. The children were then taken from the father in 2017, and after the second dependency, custody was granted to the mother. The mother subsequently had another child.

It is alleged that in 2018, a third dependency commenced after all three children were removed from the mother’s care. The County Children and Family Services (CFS) subsequently recommended that any reunification efforts with the mother be bypassed. The court issued an order bypassing reunification services for the third child but granted the mother reunification services for the first two children, based on the finding that the two children were the same child. Counsel for the first and second child appealed.

California Court Discusses Mutual Domestic Violence Restraining Orders

Published on: October 8, 2019 | by Bay Area Family Law Center

It is not uncommon for a couple in the process of divorcing to become contentious, and in some cases, contention can lead to violence. Frequently, both parties commit acts of domestic violence, and therefore, the California courts are permitted to enter mutual domestic violence restraining orders. In the recent case of Manishkumar and Ankola decided by the Court of Appeal of the Sixth District of California, the court discussed when a court has the authority to issue a mutual restraining order. It is prudent to meet with a skilled California family law attorney if you have been accused of domestic violence or are a victim of domestic violence.

Factual and Procedural Background

In the case, the husband and wife married in June of 2014, but their relationship quickly deteriorated. The husband filed a petition to nullify the marriage in December of 2015, alleging that the marriage was fraudulent. The wife filed numerous requests for domestic violence restraining orders against her husband. One of the orders was granted, and the court issued a domestic violence restraining order with a five-year duration against the husband. Then, in August of 2017, the husband filed a request for a domestic violence restraining order against his wife. The wife filed a written response to the husband’s request in which she denied her husband’s allegations, but she did not file her own request.

It is alleged that in February of 2018, a hearing was held on the matter. Husband and wife both testified regarding various acts of domestic violence each party committed. Following the hearing, the court stated it was going to issue a finding that each party committed acts of domestic violence, and enter a mutual restraining order. Thus, the court entered a restraining order against both husband and wife. The husband appealed.

6 Money-Saving Tips That Will Change Your Approach on Deciding Who Gets The House In A California Divorce

Published on: October 8, 2019 | by Bay Area Family Law Center

In California, one of the most common questions that arises when it comes to divorce is, who gets the house? When couples divorce, they often tie deciding who gets to house to child custody, financial arrangements, and negotiations for other marital property. So if the ex-spouses do not agree, things can escalate quickly. And so can the legal bills.

If you and your ex-spouse are trying to decide what to do with your family home, here are some money-saving tips to consider:

Tip #1: Figure Out Who Owns What

California Court Discusses Third-Party Visitation Rights

Published on: September 10, 2019 | by Bay Area Family Law Center

In any family law case in which the custody of a child is at issue, the court’s foremost concern is to develop an arrangement that is in the best interest of the child. While typically custody will be divided between a child’s biological or legal parents, in some cases the court will find that it is beneficial for a child to grant a third-party custody rights. In a recent case ruled on by the Court of Appeals for the Sixth District of California, in which the ex-boyfriend of a child’s mother sought visitation, the court discussed when it is appropriate to grant a third-party custody rights. If you are involved in a custody dispute with your child’s co-parent or any other party, it is critical to retain a seasoned California child custody attorney to fight to help you maintain your custody rights and seek an arrangement that is in your child’s best interest.

Facts of the Case

It is reported that in July 2017, mother was arrested for driving under the influence and her two minor children were taken into protective custody. The plaintiff lived with the mother and both children from October 2016 through March 2017 and was the father of the younger of the two children. The plaintiff indicated during a dependency hearing that he wished to be designated as the presumed parent of the older child. At a subsequent hearing, the court found that both mother and the plaintiff had behavioral and substance abuse issues and named both children to be dependents of the court. The court also granted the plaintiff supervised visits with the younger child and mother supervised visits with both children.

Allegedly, the children were later moved from foster care into the home of their grandmother. The plaintiff subsequently petitioned the court to be recognized as the presumed parent of the older child, which the court denied. The plaintiff then requested visitation with the older child. Mother opposed the petition, arguing the older child was doing fine without seeing the plaintiff and that the sibling bond between the two children did not suffer due to the fact that the plaintiff only had access to one child. The court found that a bond existed between the plaintiff and the older child, and granted the plaintiff visitation rights. The mother appealed.

California Court Addresses Validity of Premarital Agreements

Published on: August 2, 2019 | by Bay Area Family Law Center

In many divorce cases, the parties’ rights and obligations are delineated by a premarital agreement. Premarital agreements are typically enforced unless either party can show just cause for setting aside the agreement. Recently, the Court of Appeals for the Sixth District of California discussed the issue of what constitutes sufficient grounds for rendering a premarital agreement unenforceable due to unconscionability. If you entered into a premarital agreement prior to your marriage and are contemplating a divorce it is essential to speak with a trusted California divorce attorney regarding how the agreement may affect your rights.

Factual and Procedural Background

Reportedly, the husband and the wife, who are both architects, began corresponding in 1995, when the wife lived in Russia, and the husband lived in the United States. Later that year, the wife began working as an architect in Houston. She completed all of her architectural drafting in English. In the winter of 1995, the wife moved to California and became pregnant with the husband’s child. She gave birth to a daughter in September 1996. After the birth of her daughter, the wife wished to remain in the United States.

It is alleged that the couple decided to wed, but the husband stated he wished to enter into a premarital agreement prior to getting married. Specifically, the husband was concerned about having to pay spousal support if he and the wife divorced, and about the wife leaving the country and gaining rights to his property. The husband and the wife met with a paralegal and signed a boilerplate premarital agreement in October 1996. The paralegal advised the couple that the agreement had been drafted by an attorney and had them execute a document acknowledging that she was not giving them legal advice. In part, the agreement stated that in the event of a divorce, neither party would owe the other party spousal support. Continue Reading ›

California Court Discusses Modification of Out of State Custody Orders

Published on: July 3, 2019 | by Bay Area Family Law Center

In our current world, when a couple divorces it is not uncommon for one parent to move to another state. In most cases, the state that originally decides a custody matter retains jurisdiction over the matter, and other courts must abide by the original court’s order. The Court of Appeals for the Fourth District of California recently addressed the issue of when a court is permitted to modify a custody order issued by another jurisdiction. If you share custody of your child pursuant to an order that was issued in another state that you or your co-parent wishes to amend, it is critical to meet with a seasoned California family law attorney to discuss whether the order is subject to modification by the California courts.

Factual Background of the Case

Reportedly, the mother and father share custody of two children. The terms of the custody were determined by a consent order issued by a North Carolina court in 2017. In 2018, however, the mother filed a family law action in the California courts and registered the North Carolina order as required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She then filed a petition for an order modifying ten of the terms set forth in the North Carolina order.

It is alleged that Oral argument was held on the matter, after which the court ruled that California had UCCJEA jurisdiction and that California had jurisdiction to enter custody orders in the case. The court granted the mother’s petition in part and denied it in part. The mother then appealed. On appeal, the court reversed the trial court ruling on the grounds that the trial court lacked jurisdiction to modify the North Carolina order.

Court Addresses Proof of Abandonment in California Custody Cases

Published on: June 6, 2019 | by Bay Area Family Law Center

When determining child custody, the California family law courts are obligated to render decisions that are in the child’s best interest. Thus, in some cases, a court must make the difficult decision to terminate a parent’s custodial rights, based on the fact a parent has abandoned the child. A California appellate court recently analyzed what constitutes abandonment, in a case in which the biological mother of two children did not seek or contact the children for over a year while she sought treatment for addiction. If you are in the process of determining custody of a child it is essential to engage an experienced California family law attorney to help you protect your parental rights.

Factual Background of the Case

Reportedly, the mother and the father were married, had two daughters, and then divorced. The mother was granted primary custody and the father was granted visitation. Four years after the divorce, the father began to suspect the mother was using illicit drugs and sought temporary sole custody of the children. The mother admitted to using drugs and stipulated to allow the father to have temporary sole custody while she underwent treatment for drug and alcohol addiction. The mother was in treatment for a total of fourteen months.

Court Analyzes Factors for Permitting Out of State Relocation in California Custody Cases

Published on: May 3, 2019 | by Bay Area Family Law Center

It is not uncommon for a divorced couple that shares custody of a child to live in close proximity to one another, both for the sake of convenience and to benefit the child. In some cases, however, one parent will move far away, and may even relocate to another state. It is inevitable that a parent’s out of state relocation will affect his or her custody rights, but when the parent moving away seeks to obtain primary custody and relocate the child to another state, it will completely alter the lives of both parents and the child. A California court of appeals recently explained the factors a court must weigh when an out of state parent seeks to relocate a child to his or her state, in a case in which a father who moved to Arkansas was granted physical custody of a child. If you share custody of a child and your co-parent wants to relocate your child to another state it is vital to retain a skillful California family law attorney to assist you in protecting your parental rights.

Living Situations of the Child’s Parents

Allegedly, the mother and father married in 2005 and divorced in 2007. They had one child together. A 2008 custody order granted the mother primary physical custody, and a final custody order in 2009 granted the father the right to overnight visits. The mother stated she would not comply with the terms of the order. In 2010, the custody order was modified due to the father’s lack of employment or housing.

It is reported that when the father obtained housing, the mother again stated she would not allow the child to stay overnight with the father. In 2011, the father moved to Arkansas. Subsequently, in 2017, the mother requested sole custody, noting that the father had only seen the child for 35 days each year. The father filed a response asking the court to grant joint custody, with his home as the child’s primary residence. Following a hearing, the court granted the parents joint legal custody and awarded primary physical custody to the father. The mother appealed.