Atty. Kenneth Reyes

Management and control of community property after separation

Thursday, 13 August 2009 22:42 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.

Why is the date of separation significant in divorce cases?

Thursday, 06 August 2009 19:26 Atty. Kenneth Ursua Reyes

The date of separation is one of the most litigated issues in a divorce case. Its determination can have a significant economic consequence in the outcome of the case. The reason being, a spouse’s "earnings and accumulations" after a judgment of legal separation are his or her separate property. A spouse’s "earnings and accumulations" while living separate and apart from the other spouse are his or her separate property as well pursuant to Family.Code. § 771(a)).

"Separation" requires more than a rift in the spouses’ relationship. The date of "separation " occurs only when the parties have come to a parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship. In simple terms, it the first point in time when either party decides to finally end the marriage with no intent to return to their spouse. The burden of proof required to prove this is a preponderance of the evidence. A spouse must show that 1) the spouse entertains the subjective intent to end the marriage, and 2) there is objective evidence of that intent. A party’s intent may be evaluated in terms of the spouse’s words and conduct evidencing this intent and this should occur simultaneously.

Defending husbands against wife’s false allegation of domestic violence

Thursday, 30 July 2009 20:38 Atty. Kenneth Ursua Reyes

(1 vote, average: 1.00 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 especially 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.

K-1 Visa: Fiance(e) Visa to marry US Citizen

Thursday, 23 July 2009 21:53 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.

Apportionment of retirement benefits in divorce cases

Thursday, 16 July 2009 20:19 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.

Factors that are considered in an award of spousal support

Thursday, 09 July 2009 22:25 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.

Permanent Residency through Marriage to US Citizen Spouse

Thursday, 02 July 2009 22:16 Atty. Kenneth Ursua Reyes

(1 vote, average: 5.00 out of 5)

Recentchanges in immigration legislation has 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. H-b visas has 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.

Modifying down child and spousal support in a recession

Tuesday, 23 June 2009 23:03 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.

Parent’s Right to Change Child’s Residence to another state in custody case

Thursday, 04 June 2009 21:04 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 non-custodial 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.