Atty. Kenneth Reyes

Characterization of Gifts in Divorce Cases

Friday, 23 January 2009 01:03 Kenneth Ursua Reyes

Generally, property acquired during the marriage are considered community property. However, property acquired by "gift, bequest, devise, or descent" are the acquiring spouse’s separate property. The issue becomes more complicated when a gift is given under the name of both spouses. In that situation, the community property joint presumption kicks in which presumes an acquisition by the spouses during the marriage in "joint form" as community property under Family Code Section 2581. In such situations, it is important to look into evidence of the intent of the donor and the parties mutual understanding. At the very least, the gift becomes a reimbursable separate property contribution. Therefore, it is important to evaluate the intent of the parties and the underlying circumstances when faced with what the other spouses characterizes as a "gift."

Defending husbands against wife’s false allegation of domestic violence

Thursday, 15 January 2009 22:43 Atty. Kenneth Ursua Reyes

(1 vote, average: 5.00 out of 5)

Many women contemplating divorce file false allegations of domestic violence against their husband as a matter of tactical advantage in a divorce case. This is often done either without notice to the husband or ex parte with 24 hour notice. It is unfortunate that there are bad apples out there because it shifts the burden to the Courts to weed out which cases are false and which are meritorious enough to deserve protection under the law. Courts often take the side of caution in these cases specially where physical abuse and contact are involved. Court tend to protect women and children because they are the most vulnerable in our society. Unfortunately if the allegations are false, it often gives the domestic violence applicant a tactical advantage in a divorce proceeding against the husband in several respects.

First, the husband can be ordered to move out of the family residence immediately or on short notice. This puts the husband in a difficult position of having to look for a place to stay and not having enough time to take personal belongings and documents he may need in a future divorce battle. If the husband is the high earner in the household, he may also be ordered to maintain the household even though the wife is the one that lives there. Husband is placed in the situation where he has to maintain two households.

Can I modify my child support obligation to the county?

Thursday, 08 January 2009 23:44 Atty. Kenneth Ursua Reyes

MANY father’s end up owing child support to the Los Angeles County Department of Child Support Services as a result of the Custodial mother’s actions. Usually, the Custodial mother received welfare benefits from the County for the benefit of the children in which case the County has the right to seek reimbursement from the non-custodial father in the form of child support. In other cases, the custodial mother simply requests the County to enforce the child support obligation against the father. In many cases, the father does not show up in court after receiving a notice from the County end up being defaulted by the County. By the time they realize their obligation, they are in arrears in the thousands of dollars with their driver’s license suspended.

Relief from default in divorce cases

Thursday, 25 December 2008 18:30 Atty. Kenneth Ursua Reyes

(1 vote, average: 2.00 out of 5)

There are situations in both Divorce and Child Support cases where the Summons and Petition resulted to a default against one party for failing to respond in time. In certain situations, the defaulted party failed to respond in time because he or she did not even know that he or she was served with a Summons. This situation places the defaulted party in a precarious situation in that the first time the defaulted party usually becomes aware of the existence of the case is when the default child support judgment or divorce judgment is actually being enforced against the defaulted party. At this point, the party no longer has the right to participate or defend itself in the litigation.

Temporary child support in divorce cases

Thursday, 18 December 2008 21:44 Atty. Kenneth Ursua Reyes

Apart from the emotional issues, financial issues arise that require due consideration when dealing with a pending divorce. During marriage, when things are going well, a couple more often than not is able to reach a workable agreement concerning the financial support of their minor child. Couples typically are able to plan and agree on how expenditures for their child will be dealt with.

When a couple is faced with a pending divorce, issues of child support often come into play. Often one parent has little or no independent income with which to satisfy support needs, and the other parent simply refuses to continue support on a voluntary basis. A parent is thus confronted with the issue of how to support his/her child pending final judgment in a divorce proceeding.

Changing separate property to community property for estate planning purposes and its consequences upon divorce

Sunday, 14 December 2008 22:42 Atty. Kenneth Ursua Reyes

Spouses during both before and during marriage may agree to change the character of any of their property—from separate property to community property, from community property to separate property, and from separate property of one spouse to separate property of the other. When spouses agree to change the character of property, it is commonly referred to as "transmutation." Transmutations of real or personal property must be "in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest is adversely affected." Family Code Sec. 852(a),(e); Estate of MacDonald (1990) 51 C3d 262, 267–268, 272 CR 153, 157. Further, the writing must contain language which expressly states that the characterization of property is being changed. Estate of MacDonald, supra, 51 C3d at 264, 272, 272 CR at 155, 160.

Factors that are considered in an award of spousal support

Sunday, 07 December 2008 23:13 Atty. Kenneth Ursua Reyes

The purpose of spousal support is not defined by the legislature in that its purpose varies according to the facts and circumstances of each case. The facts and circumstances of a particular case may be such which call for no spousal support, or for support for a very limited period of time, with the purpose to assist the supported spouse to "get back on his or her feet" as a single person, or until community property is distributed. On the other hand, the facts and circumstances of another case may call for support for an extended period of time, perhaps until death of the supported spouse, the purpose for which to provide assistance to one who cannot support himself.

The two situations mentioned hereinabove are extreme cases, on opposite ends of the spectrum. Quite obviously, the facts and circumstances in a particular case may be such which call for some amount of support for some period of time, though not until death of the supported spouse. For example, the court may order support for that period of time required for the supported spouse to obtain or complete an education, to allow the supported spouse to take care of the children until they reach an age where a return to employment would be more feasible, or to become self-supporting within a reasonable time.

Characterization of gifts in divorce cases

Thursday, 27 November 2008 00:13 Atty. Kenneth Ursua Reyes

(1 vote, average: 5.00 out of 5)

Generally , property acquired during the marriage are considered community property. However, property acquired by "gift, bequest, devise, or descent" are the acquiring spouse’s separate property. The issue becomes more complicated when a gift is given under the name of both spouses. In that situation, the community property joint presumption kicks in which presumes an acquisition by the spouses during the marriage in "joint form" as community property under Family Code Section 2581. In such situations, it is important to look into evidence of the intent of the donor and the parties mutual understanding. At the very least, the gift becomes a reimbursable separate property contribution. Therefore, it is important to evaluate the intent of the parties and the underlying circumstances when faced with what the other spouses characterizes as a "gift."

Grounds for annulling a marriage

Thursday, 20 November 2008 22:48 Atty. Kenneth Ursua Reyes

MOST couples that want out of a marriage in California usually file for divorce. There are circumstances though that allow a couple to have their marriage "voided" rather than "dissolved." There is a big difference between the two concepts. With a voided marriage, it restores the couple to status of unmarried person as if they have never been married before. In a divorce, the couple would always be regarded to as married during the period of the marriage.

Unlike divorce which can be obtained regardless of the reason. Voiding a marriage may only be obtained based on certain grounds. It is void in cases of incest and bigamy. It is voidable in cases of minority, Unsound Mind, Fraud, Force, or Physical Incapacity. Marriages between parents, children, ancestors and descendants, brothers and sisters, half brothers and sisters, uncles and nieces, and aunts and nephews are incestuous and are void from the beginning. So are bigamist marriages where either party was still married to another person when they entered the marriage. Nevertheless, it is best to obtain a Nullity Judgment to clarify the legal status of the parties under these circumstances.