Sacramento Attorney Blog
Sacramento Attorney Blog includes discussions and information regarding family law matters and issues encountered during civil litigation provided by attorney Edward Misleh.
Sacramento Attorney Blog consists of posts in that are posted over time and not necessarily in chronological order, so that the most recent post appears first, at the top of the web page. Sacramento Attorney Blog is the work of a single individual, Attorney Edward Misleh, and covers the following subjects:
Sacramento Family Law Attorney Location: The Law Offices of Edward Misleh, APC is a Sacramento Family Law Attorney law firm that is located in Sacramento, California and has been representing clients who live or work in Sacramento, California, Northern California, and throughout the United States in the following areas of law. Our lawyer has the experience and knowledge to handle your divorce or family law matter in the most effective and issues involving probate.
Family Law: California Family law is an area of the law that deals with family matters and domestic relations. The most often issue being the filing of a dissolution of marriage; otherwise known as divorce. Other typical legals matters handled by the Sacramento Family Law Attorney, include child custody, child support, spousal support, division of community property (including retirement accounts), guardianship of a minor or adult, and probate matters.
Prenuptial and Posnuptial Marriage Contracts: In California, couples can enter into prenuptial agreements (prenups) and postnuptial agreements (postnups). The difference between a “prenup” and a “postnup” is that one is entered into before marriage while the other is entered into after marriage. Couples have prenup and postnup agreements contemplating the possibility of divorce. Both agreements are contracts that characterize the parties’ assets, distribution of those assets, and/or other specific interests. Both documents require specific language and “disclaimers” to be enforceable. What is often at stake is community property or potential community interests which must be disclosed and any characterization to designate property as one person’s separate property agreed to. Sacramento Family Law Attorney can draft a pre-nuptial or post-nuptial agreement to address your specific needs.
Cohabitation & Palimony: Palimony refers to support payments that can be made to unmarried partners following a breakup. Such support payments have been permitted in California ever since a 1976 decision in the state Supreme Court which addressed premarital cohabitation. Requests for support based on premarital cohabitation are not made through the family law courts because it’s not part of a divorce proceeding. Instead, these claims are filed as general civil actions, usually in conjunction with breach of contract or even implied partnership claims, among others.
Divorce: In California, divorce, also known as dissolution of marriage, is the legal process to terminate a marital relationship. The divorce process begins when either you or your spouse decides to terminate the marital union and the legal duties and responsibilities of marriage by filing a petition for dissolution. There are many issues that you may encounter by filing as a petitioner or as respondent – some clients may want to initiated a divorce proceeding while other may find it advantageous to respond immediately to a divorce petition. Sacramento Family Law Attorney has extensive experience in handling all aspects of divorce.
Divorce Residency Requirements: Filing for divorce in the State of California requires that at least one spouse have resided in the state for at least six months prior to the date of filing, and that the filing spouse have resided in the county where they are filing for at least three months prior to the date of filing. In short, you must have been a resident of the county in which you are filing for at least 3 months prior to the date of filing and a California resident for at least 6 months prior to the date of filing. If you do not meet residency requirements, you can still file for a legal separate which can later be converted to a divorce proceeding. Contact Sacramento Family Law Attorney for a free consultation on divorce.
Military Divorce: In California, there is generally no difference between a “Military Divorce” and a California civilian divorce. However, there are some exceptions and requirements which will need to be addressed when a service member files for divorce or receives a petition for divorce. Contact Sacramento Family Law Attorney about your Military divorce.
- Residency Requirements: When one party is in the military, a military divorce can be filed in the state where the service member is currently stationed (whether in or outside the U.S.); the state where the service member claims legal residency; or, the state where the non-military spouse resides.
- Calculating Income: Determining a military member’s income in a military divorce requires specific knowledge and expertise. Service members income can include basic allowances for housing, expenses, and their basic pay. These additional allowances bear on the amount of child and spousal support awarded to one spouse.
- Division of Military Pension: The member’s military pension is considered as an asset upon divorce. A service member who has served at least 20 years in the service is entitled to receive a military pension based on a percentage of their basic pay.
- Thrift Savings Plan and Federal Employee Retirement System: TSP participants are immediately vested which means that they are entitled to their own contributions and any agency matching contribution. However, there is a minimum amount of time in service a TSP participant must meet in order to be vested in the agency automatic (1%) contributions and associated earnings in their accounts.
- If a Federal Employees Retirement System employee separates from Federal service before meeting the TSP vesting requirement, the agency automatic (1%) contributions and associated earnings will be automatically forfeited to the TSP. A FERS employee who dies in service is deemed to be vested in the TSP, no matter how many years of service the employee had completed. Consequently, an employee’s beneficiary will be entitled to all the funds in the employee’s account.
- For most FERS employees, the TSP vesting requirement is 3 years. However, employees serving in certain positions only need to complete 2 years of service to meet the TSP vesting requirement.
- Former Spouse’s Share of Retired Pay: Former spouses who wish to receive their share of the service member’s retirement directly from the Defense Finance and Accounting Service (DFAS) must have at least 10 years of marriage overlapping the military service. DFAS requires a division order specify a dollar amount of award or a percentage of retirement pay to divide a service member’s retired pay.
- 20/20/20 Benefits: An unmarried “20/20/20” former spouse qualifies for medical benefits and commissary and exchange privileges if the parties have been married for at least 20 years; the service member performed at least 20 years of service creditable for retirement pay; and, there is at least a 20 year overlap of marriage and the military service.
A former spouse who has employer-sponsored medical insurance is not eligible for military medical care or TRICARE. If the employer plan is optional, the former spouse may decline that insurance and remain eligible under TRICARE.
- 20/20/15 Benefits: A “20/20/15” former spouse qualifies for medical benefits for one year from the date of the divorce or annulment if the parties have been married for at least 20 years; the service member performed at least 20 years of service creditable for retirement pay; and, there is at least a 15 year overlap of the marriage and military service. A “20/20/15” former spouse who has employer-sponsored medical insurance is not eligible for the one-year transitional medical care. However, if the employer plan is optional, the former spouse may decline that insurance and participate in the one-year benefit.
Child Custody: In California, child custody is defined as the legal relationship that parents have with their child. This legal relationship can be established by a court during a divorce proceeding or agreed to by the parents. Contact Sacramento Family Law Attorney to discuss the types of child custody you may encounter, which includes:
- Legal custody: The parents’ right to make decisions regarding the child’s care and development. Parents can reach an agreement regarding custody without court intervention. This agreement can then be entered as a court order. Otherwise, parents will attend mediation and receive recommendations about custody and parenting time.
- Physical custody: The time each parent spends with a child. Parents can reach an agreement regarding custody without court intervention. This agreement can then be entered as a court order. Otherwise, parents will attend mediation and receive recommendations about custody and parenting time.
- Joint Child Custody: Sometimes referred to as 50-50 custody. Joint legal and physical custody is the “favored” arrangements that courts would like for parents to have with their children. A court can address child custody should the parents be unable to do so. A judge, who has wide discretion in drafting a parenting plan, will order one that is in a the “best interests of the child.”
- Sole Physical Custody: A parent who is awarded sole physical custody has the exclusive right to physically care for their child. The other parent, non-custodial parent, is awarded visitation. The court must consider the best interests of the child before it awards sole physical custody to one parent. Once the court awards sole physical custody to one parent, that parent has the right to control the physical care of the child without the need to consult the other parent.
- Sole Legal Child Custody: A parent with sole legal custody holds exclusive rights to make critical decisions that affect the child’s safety, health and welfare. The court must consider the best interests of the child before it awards sole legal custody to one parent. Once sole legal custody is ordered to one parent, that parent has the right to make all other decisions over the child’s life, without the other parent’s approval.
- Child Custody Modification: A request to modify child custody (the parenting plan) is undertaken after entry of a custody and visitation order. Parenting plans are often changed as children get older and their needs, interests, and activities change. Custody orders can be modified when a parents moves, advances in their career, or remarries. To request a modification, you must show that there has been a “change in circumstances” since the final custody order was made. This means that there has been a significant change that requires a new visitation arrangement for the best interests of the children. A significant change is required because it is best for children to have stable and consistent custody arrangements with their parents. Final custody orders should only be changed if it would be best for the children.
Child Support: The ongoing and periodic payment made by a parent for the financial benefit of a child following a divorce. Child support can be requested by a parent or by the State of California. Child support is determined by each parent’s parenting time and each parent’s income. Child support can be requested by either parent at any time and child support cannot be “waived.” Alternately, if your child is receiving assistance from a county or the State of California, both parents can be requested to pay child support to compensate for the financial aid provided. Child support is the amount of money that a court orders a parent to pay for the support of their child. Each parent is equally responsible for providing for the financial needs of their child. A California court cannot enforce a child support obligation until support has been requested and ordered. Support payments usually continue until the child turn 18. Support payments can continue until the age of 19 if the child is still in high school full time, living at home, and cannot support themselves. Contact Sacramento Family Law Attorney to discuss obtaining, modifying or terminating child support.
- Requesting Child Support: Either parent can submit a request for support. This can be done when you file for divorce, legal separation, annulment, a domestic violence restraining order, or in a petition for custody. If one parent has been receiving public assistance from the State of California or a California County program, a local agency will automatically file a support case against the noncustodial parent.
- Modifying Child Support: Child support can be modified should there be a change in parenting time or the income of either parent. Remember, should you have a change in income and not request a modification of child support you will be charged with arrears for missed payments which may not be credited.
Spousal Support: Also known as alimony in other states, is a legal obligation for one spouse to provide financial support to the other spouse during separation and after divorce. Spousal support that is agreed to or awarded after the date of separation and until a divorce is finalized is called temporary spousal support. Spousal support that is agreed to or awarded after a divorce is finalized is call permanent spousal support. Spousal support is available to either a husband or wife and is awarded to help one spouse attain the marital standard of living. Contact Sacramento Family Law Attorney to discuss obtaining, modifying or terminating spousal support.
- Temporary Spousal Support: Temporary spousal support is ordered by a court during your divorce proceeding. A court is allowed to use a computer program, called Dissomaster or X-spouse, to determine temporary support. The only factors a court considers for temporary support is the supported party’s needs and the supporting party’s ability to pay.
- Permanent Spousal Support: A court must address a number of factors which includes; (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following, (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment, (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties; (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party; (c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living; (d) The needs of each party based on the standard of living established during the marriage; (e) The obligations and assets, including the separate property, of each party; (f) The duration of the marriage; (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party; (h) The age and health of the parties; (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party; (j) The immediate and specific tax consequences to each party; (k) The balance of the hardships to each party; (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties; (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325; (n) Any other factors the court determines are just and equitable.
- Spousal Support Duration: This is left to the discretion of the court within certain general equitable principals and guidelines.” A general rule is that spousal support will last for half the length of a marriage that was less than 10 years long. However, in longer marriages, the court will not set a duration. The burden will be on the party who pays to prove that spousal support is not necessary at some future point in time.
- Modifying Spousal Support: You can request to change a spousal support order if you can show that there has been a “change in circumstances” since the spousal support order was made. The supported party no longer needs support or the supporting party can no longer afford to paid support.
- Terminating Spousal Support: Spousal support is terminated by death, remarriage, or by a court order. A spouse is given support for a reasonable amount of time to become self-supporting. In marriages lasting less than 10 years, a reasonable amount of time is generally considered to be half the length of the marriage. In marriages that last longer than 10 years, a court will require the supported spouse to become self-supporting as soon as reasonably possible. California law does not require lifetime support and spousal support can be terminated at any time.
Marital Assets: All property (whether it be an asset or debt) acquired during a marriage is characterized as community property. All property acquired before marriage or after to date of separation; by gift; or, from an inheritance is characterized as separate property. All community property is to be divided while all separate property is awarded to the acquiring spouse. The division of property requires that all property be first characterized after which reimbursements and credits must be considered. Contact Sacramento Family Law Attorney to discuss establishing and dividing your marital assets.
- Community Property: In the State of California, all assets and debts you acquire during a valid marriage is presumed to be community property. When you file for divorce, any property you may own is characterized as either community property or separate property. Any property that can be traced to a separate property source is characterized as separate property.
- Separate Property: You can acquire separate property in a number of ways. It can be property you received before the marriage, property you were given, property you inherited, or any property you acquire after separation.
- Dividing Marital Property: During your divorce, you can agree on a division of the community assets and debts. Should you and your spouse not be able to agree, it can be done by a court which will order an equitable division. Determining and dividing community property assets and debts can have a significant effect on your current lifestyle and future retirement. Take time to carefully determine the value of all community property and your interests.
Domestic Violence: Domestic violence is an act of violence perpetrated by an abuser on a victim. The parties must share a close relationship. Domestic violence can happen to anyone; men and women alike. If you, or someone you know, has being a victim of domestic violence, you should contact law enforcement for help and seek medical attention for any injury. Contact Sacramento Family Law Attorney should you want to file a domestic violence action or need to be defended in a domestic violence case.
- Domestic Violence Restraining Orders & Civil Harassment Orders: A domestic violence restraining order is a court order restraining a party from abusing another person who they share a close relationship. Abuse includes physical violence, verbal attacks, emotional distress, economic restrictions and sexual attacks or molestation. Civil harassment are requests made by those who are not sharing a close relationship. Abuse is defined as: intentionally or recklessly caused or attempted to cause bodily injury or sexual assault; placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or, engaging in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another.
- Acts of Domestic Violence: Domestic violence is a pattern of behavior which involves violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation. Domestic violence often begins with an argument between spouses or those who are in a close relationship. An argument can become very emotional and possibly result in physical harm. And when it does, the argument often ends with someone contacting law enforcement to make a report.
- Domestic Violence Abuse: Abuse is found when a perpetrator commits one of the following acts: Intentionally or recklessly caused or attempted to cause bodily injury or sexual assault; Places a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or, Engages in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another.
- Protect Yourself from Domestic Violence: The State of California has enacted laws addressing Domestic Violence to protect families and those who are in a close relationship with others from abuse and acts of violence.
- Restraining Orders: A Domestic Violence Restraining Order is a court order issued to protect a victim from physical or sexual abuse, threats, stalking, and harassment. The person requesting a restraining order is called the “protected person.” The person the restraining order is against is the “restrained person.” These orders can include requests to protect others, protect pets, and to have the abuser move-out of the residence.
- Restrained Party: You may request a Domestic Violence Restraining Order protecting you from your spouse, former spouse, the person you are or have dated, a close relative, or a person who regularly lives in your home.
- Civil Harassment Restraining Order: If you do not qualify for a domestic violence restraining order, you can file for a civil harassment restraining order. This is often used by clients seeking to protect themselves from neighbors, roommates, coworkers, or more distant family members.
Guardianship: Individuals often hire family law attorneys to apply for guardianship. Guardianships are granted when a court finds the need for one individual to care for another individual’s well-being or property. Guardianship is a legal relationship created between two parties. Once done, the guardian will have the authority, and corresponding duty, to care for a person and their property interests. The individual cared for by the guardian is called a ward. Contact Sacramento Family Law Attorney about filing for and/or obtaining a guardianship.
- Guardianship of a Child: You can seek appointment as a guardian if you are not the child’s parent. However, to be appointed as guardian of a child, you must be willing to care for and tend to the child’s needs or property interest.
- Guardian Ad Litem: A guardian ad litem (GAL) can also be referred to as Court Appointed Special Advocate (CASA). These individuals are the voice of the child in court. Once appointed, the guardian ad litem may represent the child in a court proceeding. Judges often adhere to any recommendations given by the child’s representative.
- Child Custody: An award of guardianship will affect child custody – the rights of a parent to raise and control their child. Under a guardianship, parental rights are limited. While the guardian will have the right to make decisions regarding the child’s care, the parents will be permitted to have reasonable contact with the child.
- Grandparent’s Visitation: The legal right that grandparents have to see and interact with their grandchildren will most likely require the assistance of a family law attorney. Should a grandparent be denied contact with their grandchild, they will have to obtain a court order granting them the right to visitation.
- Adoption: Attorneys practicing family law can be very helpful to those who wish to assume the parenting role of another, usually a child, from that person’s biological or legal parent(s). Adoption not only creates a new legal relationship but also severs a prior legal relationship. When a child is adopted, the parental rights of the child’s parents are terminated. The legal relationship between the adoptive party and the child is permanent and is treated exactly the same as if the child was born to that party. An adopted child inherits from his or her adoptive parents, just as a child would.
Estate Planning & Probate: Estate planning is the process to anticipating and arranging for the management and disposal of a person’s estate during their lifetime and after death. It is undertaken to maximizing the value of the estate by reducing taxes and other expenses. Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate. Contact Sacramento Family Law Attorney about your estate planning issues.
- Transfer of Property: California Estate planning begins for those who want to create a will or trust to transfer their property to beneficiaries after death. Estate planning can help to minimize tax consequences on your personal estate and to make it much easier for your beneficiaries to receive property from your estate.
- Wills and Trusts: We can create a Will or a Trust to aid in the administration of your estate; to protect your property; to avoid probate; and, to ensure that your loved-ones receive their interests in your estate. Our areas of service include: estate planning, intestate distribution, will contestation, beneficiary rights, living trusts, revocable trusts, irrevocable trusts, special needs trusts, powers of attorney, and advance health care directive.
- Probate: Probate is the judicial process whereby a will is “proved” in a court and accepted as a valid public document that is the true last testament of the deceased. The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property under a will. A probate court decides the legal validity of a testator’s (deceased person’s) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator’s assets in the manner specified in the testator’s will.
Civil Litigation: Civil litigation are court actions that involve two or more parties who are embroiled in a legal dispute seeking money or another specific performance, rather than criminal sanctions. The attorney who handles civil litigation is known as a “litigator” or a “trial lawyer.” The attorney represents clients across a broad spectrum of associated proceedings, including pretrial hearings and depositions, as well as arbitration or mediation before administrative agencies or court personnel. Arbitration and mediation are processes that attempt to guide the parties toward settlement without the time and expense of going to court. Sacramento Family Law Attorney has extensive trial and medication experience.
Types of Civil Litigation: Family law matters; Divorce lawsuits; Palimony actions; Grandparent visitation; Personal injury claims; Guardianship; Domestic Violence Restraining Orders; Civil Harassment Restraining Orders.
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