Atty. Kenneth Reyes

Modifying down child and spousal support in a recession

Thursday, 19 November 2009 19:41 Atty. Kenneth Ursua Reyes

THE economic crisis has affected almost every aspect of our community from depressed real estate prices, lower 401k values, and employment. Many have lost their jobs as employers try to cut cost. Those that are fortunate to keep their jobs usually have bonuses and overtime reduced. The bottom line is there is less money to go around.

To top all this off, many of us have existing child and spousal support obligations that were issued when the economy was growing and when you were generating more income. If your income has gone down substantially from the time that the child or spousal support determination, you may be able to file a modification of your support obligation. Losing a job or having less income constitutes a material change of circumstances that would allow the court to modify down your support obligations.

Permanent residency through marriage to US citizen spouse

Thursday, 12 November 2009 18:19 Atty. Kenneth Ursua Reyes

Recent changes in immigration legislation made it more difficult to pursue certain traditional paths to obtaining permanent residency in the United States. Employment based immigration has been affected by retrogression. HB visas had been affected by lower visa quotas. However, one traditional way of obtaining permanent residency which has remained unchanged is through a petition by a US citizen spouse.

As a spouse of a US Citizen, an alien is considered an immediate relative and entitled to immediately apply for a green card inside the United States. This is usually done by simultaneously filing an I-130 Petition for Alien Relative and an I-485 Application to adjust status. However in order to do this, the alien spouse must have been inspected when the alien entered the United States or if not inspected must be grandfathered by section 245(i) of the immigration and nationality act. Being inspected means that the alien entered using a valid visa, paroled inside the United States, entered using the visa waiver program. The alien is grandfathered by section 245(i) if a family petition or a labor certification has been filed for the benefit of that alien prior to April 30, 2001. If the alien was not inspected nor grandfathered under section 245(i), such as if the alien crossed the border illegally, the alien cannot obtain his or her green card inside the United States. Along with the application and petition, the alien is also required to take a medical examination by a physician designated by the USCIS. The result of that physical examination is reported in a USCIS form and sealed in an envelope submitted with the Petition and Adjustment Application.

Parent’s right to change child’s residence to another state in custody cases

Friday, 06 November 2009 07:09 Atty. Kenneth Ursua Reyes

Parents that are going through divorce and legal separation sometimes have to make a decision to move out of state for various reasons. It may be because their family network is in another state. This decision often have a significant impact on the visitation of the other parent because it would be more difficult for the noncustodial parent to exercise his or her visitation rights in a frequent and continuing manner if the custodial parent moves to a different state hundreds or thousands of miles away from the non custodial parent.

The parent that has Custody of the child has a presumptive right to change the child’s residence unless the non custodial parent can show that the move would be a detriment to the child. In cases where there has not been any final custody order, the court has to make a custody determination using "the best interest" standard. Court will look at the factors and decide what is in the best interest of the child. Custody is usually given to the parent that is more likely to allow frequent and continuing contact between the child and the other parent. On the other hand if there has been a final Custody determination, then the non-custodial parent would have to show a "significant change in circumstances" to change the custody arrangement.

Management and control of community property after separation

Tuesday, 03 November 2009 21:55 Atty. Kenneth Ursua Reyes

THE duties owed between spouses in the management and control of community property are the same with regard to those in a fiduciary relationship. The marital entity is one with the greatest degree of confidence. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and a duty to refrain from taking any unfair advantage of the other. Fam. Code Sec. 721(b) This fiduciary duty continues after separation until the date of distribution of community property. A problem frequently arises when after separation but before dissolution, one spouse breaches the fiduciary duty by mismanaging or transferring community property in prejudice of the other spouse’s rights. The aggrieved party has certain remedies available in this situation.

Family Code Sec. 1101 provides a statutory basis for a breach of fiduciary duty claim against a spouse. An actionable claim against one’s spouse lies where there is a breach of fiduciary duty which results in "impairment to the claimant spouse’s present undivided one-half interest in the community estate." Fam. Code Sec. 1101(a). An impairment that falls under the foregoing code may be the result of a single transaction or a pattern or series of transactions which have caused a detrimental impact to the claimant spouse’s undivided one-half interest in the community estate.

Management and control of community property after separation

Thursday, 29 October 2009 21:02 Atty. Kenneth Ursua Reyes

The duties owed between spouses in the management and control of community property are the same with regard to those in a fiduciary relationship. The marital entity is one with the greatest degree of confidence. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and a duty to refrain from taking any unfair advantage of the other. Fam. Code Sec. 721(b) This fiduciary duty continues after separation until the date of distribution of community property. A problem frequently arises when after separation but before dissolution, one spouse breaches the fiduciary duty by mismanaging or transferring community property in prejudice of the other spouse’s rights. The aggrieved party has certain remedies available in this situation.

K-1 visa: Fiance(e) visa to marry US citizen

Monday, 26 October 2009 20:00 Atty. Kenneth Ursua Reyes

IN previous editions of this article, the process of obtaining permanent residence through marriage was explored. Discussion of that procedure began with the supposition that the couple was married, and continued with the various steps to ultimately gain permanent residence. In many cases, however, a problem exists in even getting to the point at which a couple is married. Often, a foreign national is in his/her home country and, for one reason or another, the US citizen cannot travel to that country to marry him/her. A solution in such a scenario can be found with the K-1 Fiance(e) Visa.

A K-1 visa allows a foreign national to come to the United States to marry a United States citizen. The K-1 visa is valid for ninety (90) days after entry to the United States, during which time the marriage must take place. Once the foreign national is issued a K-1 visa, any of his/her unmarried children under the age of 21 may be issued K-1 visas. Upon arrival in the United States, the foreign national may immediately apply for permission to work. A two-step process is involved to obtain a K-1 visa.

K-1 VISA: Fiance(e) visa to marry US citizen

Thursday, 22 October 2009 20:55 Atty. Kenneth Ursua Reyes

In previous editions of this article, the process of obtaining permanent residence through marriage was explored. Discussion of that procedure began with the supposition that the couple was married, and continued with the various steps to ultimately gain permanent residence. In many cases, however, a problem exists in even getting to the point at which a couple is married. Often, a foreign national is in his/her home country and, for one reason or another, the US citizen cannot travel to that country to marry him/her. A solution in such a scenario can be found with the K-1 Fiance(e) Visa.

I Want out! Dissolution or legal separation?

Thursday, 15 October 2009 21:13 Atty. Kenneth Ursua Reyes

Whenthe marital relationship sours to the point where one or both spouses believe that the marriage cannot be salvaged, three remedies are available to terminate or alter the marital status: dissolution, nullity, and legal separation.

Under Family Code Sec. 2300, dissolution of marriage can be attained and the "single" status of spouses restored by 1) death of one of the spouses 2) a judgment of dissolution or 3) a judgment of nullity of marriage.

Apportionment of retirement benefits in divorce cases

Friday, 09 October 2009 00:55 Atty. Kenneth Ursua Reyes

One of the major assets a divorcing couple usually has, other than real estate property, are retirement benefits such as company pensions, 401k, and other deferred compensation. The problem in determining how much community property interest in the retirement benefit arises when the employee spouse worked at a particular employer longer than the period of the marriage. The question that arises is how do you apportion the community property interest? How much of it is the employee spouses’s separate property?

Retirement benefits in a divorce case are usually characterized as community property to the extent that the work done to earn them is performed between the date of marriage and the date of separation. Marriage of Brown. The community interest is not affected by whether or not the rights are vested or matured. To the extent that the work was performed before the date of marriage or after the date of separation, the benefits are the employee spouse’s separate property.