Review Us
Call Today 800-491-1483
Wapnick Family Law
Serving families throughout the Bay Area

Blog

November 19, 2018 by Admin

Donation drive for families served by the Family Emergency Shelter Coalition

Thankful

The Alameda County Bar Association's Barristers Section will be hosting a donation drive at this year's ACBA Holiday Reception to create care packages for the families served by the Family Emergency Shelter Coalition (FESCO). Our associate attorney, Alice Cheng, is the chair of the ACBA Barristers Section, and a director of the ACBA Board of Directors. Donations can be dropped off at our office (101 Ygnacio Valley Rd, Ste 201, Walnut Creek) at any time through December 12th.

This holiday season, we ask that you keep in your hearts and minds the thousands of Alameda County residents who face housing insecurity and homelessness.

FESCO is a coalition of churches and community members that provide low and extremely low-income homeless families with food and emergency, transitional, and permanent housing with the goal of moving these families toward self-sufficiency and permanent housing.

We will be collecting specific items based on last name as shown below. In addition to the items below, we will also be collecting new or gently used gloves, scarves, or beanies, so please bring those items as well if you can! The more items we receive, the more packages we can create.

Please consider bringing 5 - 10 of the travel size or regular size items in the category for your last name.

A - D: Emergency ponchos

E - H: Deodorant, lotion, and / or conditioner

I - L: Bar soap

M - P: Shampoo

Q - T: Toothbrush

U - Z: Toothpaste

To learn more about FESCO and additional ways to donate to their organization, please visit: http://fescofamilyshelter.org/donate/.

Thank you to our community for your support!


October 31, 2018 by Alice P. Cheng

What about the Holidays?

PumpkinPumpkin

Picture credit: @rawpixel

Happy Halloween to our readers!

One really difficult "milestone" of divorce is the moment when our clients realize that they will not spend every holiday with their children. Holidays are usually shared by the parents. Many schedules involve a parent having one holiday during an odd year, and the other parent having that holiday during an even year. For people with school-aged children, there are many Monday holidays throughout the year. It is not unusual to see a schedule where those holidays are alternated.

Some important things to consider in crafting a holiday schedule:

1. Is the family religious? Are the parties of one religion, or of different religions? Religious holidays will need to be given some consideration.

2. What tradition(s) did the family follow during marriage? For example, some families really emphasize Christmas Eve, while other families believe Christmas Day is more important.

3. Is travel required? Does either parent have family that live a distance away?

4. How far do the parents live from one another?

5. What is the normal timeshare? Do the parents have substantially equal or relatively close to equal parenting time? For parents who have shared custody, it is not unusual for each parent to have half the break for school breaks such as the fall, winter, or spring break.

Alameda County continues to follow a child custody recommending mediation model. This means that the parties are required to attend mediation. If at the mediation they are able to reach agreements, then those agreements can be adopted into an order. If the parties are unable to reach an agreement, then the mediator will provide a report with recommendations to the judge.

For counties such as Contra Costa that have a (mostly) confidential mediation model, if the parties cannot reach an agreement, then the issue will be heard by the judge with no input from the mediator.

Mediation is a great opportunity for parents to work together to determine a holiday schedule that everyone can live with. If you are unable to reach an agreement in mediation, then the decision will be left for the mediator or the judge, people who are complete strangers who don't know about your family. The standard that will be followed is "best interest of the children". In this context, what is in the best interest of the children can be quite a nebulous concept in which reasonable minds may differ. Usually, the best bet is to try to reach an agreement in mediation, to the extent that the parties can work together to do so. The more that the parties can agree on more minor issues, the better (and cheaper) your divorce will be. But, as experienced litigators, we also understand that sometimes the power dynamics in a relationship make it impossible for mediation to be successful.

Do you have more questions about the mediation models in different counties? Read our post from March 9th and then contact us at 925-932-2225 to set up a consultation.


October 23, 2018 by Alice P. Cheng

What about Rover?

Pets

Pet owners rejoice! Family Code §2605 is being added to Part 4 - Special Rules for Division of Community Estate. It was approved by the Governor on September 27, 2018 and will go into effect January 1, 2019.

In California, pets are treated as property even though most of us would call them our family members. Whether it is a dog, cat, pig, horse, bird, or bunny, pets play an integral part in our daily lives. When a couple separates and it is time to discuss who Rover or Buttons should stay with, we often look at the details surrounding the purchase or adoption of the pet. Whose name is the pet registered under? You'll notice that the analysis is akin to determining rights for items such as a house, car, or bank account. Where are the questions about whether one spouse or the other is more able from day to day to care for the pet, or whether one spouse has traditionally taken on a larger role than the other? What if the parties can't agree who should care for the pet in the meantime?

The new Family Code §2605 is the solution. The court, at the request of a party of a divorce or legal separation, will now be able to enter orders requiring a party to care for the pet pending the resolution of the matter. If a temporary order is made, it will have no impact on the court's final determination of the ownership of the pet. Most importantly, the court may assign sole or joint ownership of a pet, taking into consideration the care of the pet. How the law will actually be interpreted by individual judges remains to be seen, but the courts will be armed with the ability to award custody of a pet based on an evaluation of the pet's care.

Wapnick Family Law attorneys deal with a wide range of family law issues, including divorce, legal separation, parentage actions, custody, support, and -- you got it -- sometimes even pets. Please contact our office at (925) 932-2225 to schedule a consultation.


August 29, 2018 by Alice P. Cheng

The Importance of Document Retention, Part Two

In our last post, we discussed the common problem of defining a client's interest in separate property. A retirement plan was the example we discussed. I'd encourage you to scroll down to read if you haven't read that one yet. Now, what happens when a party owned a house before marriage? Does that house remain as your separate property after you marry?

There are a lot of issues to consider, but the basic premise is as follows: A house purchased by a party prior to marriage remains that party's separate property. California Family Code §770(a) defines separate property of a married person as 1) all property owned by the person before marriage; 2) all property acquired by the person after marriage by gift, bequest, devise, or descent; 3) The rents, issues, and profits of the property described in this section. Sounds straightforward, but there are exceptions that can cause issues if one does not tread carefully.

Assume that Wanda and Henry marry in 2000. Prior to marriage in 1997, Wanda purchased a cute little condo in Rockridge. The deed says that she owns it as an unmarried woman. After marriage, Wanda and Henry move into Wanda's condo. Wanda and Henry do not have a premarital (prenuptial) agreement. Both Wanda and Henry work and use their earnings to pay for everyday expenses including Wanda's mortgage, property taxes, homeowner's insurance, food, clothing, and the like. In 2005, Wanda and Henry decide to get a divorce. Is the house still Wanda's separate property?

Since there is no premarital agreement, California law is the default. While Wanda retains her ownership interest in the house, the community has a financial interest. By using their community earnings to pay for the mortgage, the community is "buying in" to the house. Most mortgages have a component of principal and interest; the community will be entitled to an interest defined as the paydown of the principal only. Over time, the community is entitled to a bigger piece of the pie.

Let's take this story in another direction. Right after the marriage, Wanda sells her condo and uses the proceeds of $200,000 towards a down payment on a house in Orinda. The house is purchased in joint title with Henry. They live happily in the house in Orinda for ten years until in 2010 they decide to get a divorce. Now what?

Hopefully Wanda kept her paperwork from the sale of her condo and from the purchase of the house in Orinda. Wanda will need that paperwork to "trace" her separate property interest. Assuming she has the paperwork in order, Wanda would be entitled to a reimbursement of the $200,000 down payment without adjustment for inflation/deflation or interest. Assuming that they sell the house, Wanda would be entitled to the first $200,000 of the proceeds. What if they sell the house and there isn't enough to cover the down payment? Wanda is out of luck - the reimbursable amount may not exceed the net value of the property at the time of division.

What if Wanda and Henry never live in the condo, but after marriage the condo gets rented out to another family? Wanda would be wise to keep everything separate - maintain a bank account in her name only where she conducts all business related to the condo, including payments for mortgage, property taxes, insurance, repairs, improvements, etc. All rent, security deposits, etc. should be deposited into this account only. This is because all "rents, issues, and profits of the property" are also Wanda's separate property, but it would be a mess if Wanda deposits it into a joint account.

By now you may be able to imagine how complicated it gets if there are refinances that occur during the marriage, or if Wanda decides to put Henry's name on title at some point. This is a just a glimpse of how convoluted family law property matters can get, especially if purchases are made years ago and the paperwork is not maintained. The safest answer is to always secure your paperwork and to not rely on anyone else like the bank or title company to do that for you. You may keep the documents in paper form, but it is most advisable to keep them on a jump drive that you don't keep in the house, or to arrange for cloud storage.

We hope that this overview is helpful. If you have specific questions about your situation, please contact Wapnick Family Law at (925) 932-2225 for a consultation with one of our attorneys.


August 8, 2018 by Alice P. Cheng

The Importance of Document Retention

One of the most common problems that we experience is the difficulty in defining a client's interest in their separate property. For instance, one party may own real property or retirement accounts or have significant holdings prior to marriage. How do you secure your interest? Even if you feel secure in your marriage, it is always advisable to keep copies of certain documents.

Let's start with a simple example: retirement accounts. Joe Schmoe works for an employer who provides a 401(k) retirement plan. Joe begins to invest in said account. Five years later, Joe gets married while he is still an employee for the company. The parties have no prenuptial agreement. In this scenario, California law is the default. This means that the funds that Joe invests in his retirement during marriage is community property, while the funds he already saved up before marriage is his separate property. Joe and his wife Jane are married for ten years when they decide to divorce. Joe did not save any retirement account statements from the date of marriage moving forward. Now what?

Joe can have his attorney subpoena statements from his retirement plan. Unfortunately, most financial institutions have a retention policy that may be shorter than ten years. Depending on the financial institution, Joe might not be able to get statements going as far back as the date of marriage. Statements from the date of marriage (or a close proximate date) are important because they would allow an actuary to determine the value at the time of marriage (which helps determine Joe's separate property interest). The statements will also help determine how much the community invested into this account. The actuary can also calculate the gains and losses for both the separate property interest as well as the community's interest. Without the statements for the date of marriage, it would be impossible for Joe to prove his separate interest.

The alternative is that the parties may agree on a value for the separate property interest, but of course this is not a "gimme". Your ex may not agree, after all. They may insist on seeing paperwork that proves your interest. The safest answer is to secure your statements. You may keep the documents in paper form, but it is most advisable to keep them on a jump drive that you don't keep in the house, or to arrange for cloud storage. The bottom line is that you cannot rely on the bank or your employer to safeguard these documents for you.

Stay tuned for more on the importance of document retention. If you have specific questions about your situation, please contact Wapnick Family Law at (925) 932-2225 for a consultation.


July 26, 2018 by Alice P. Cheng

No Fault Divorce - What Does it Mean?

California is a no-fault state. You have probably heard that term mentioned before, but what does that truly mean?

By now you may have heard about the plight of Tini Owens, a 68-year-old woman in England, who was refused a divorce because she was unable to prove that the marriage had broken down due to adultery, unreasonable behavior, or desertion. Other than living apart for five years, these are the only ways that one can obtain a divorce in England. (See https://www.bbc.com/news/uk-england-hereford-worcester-44949856 for more information.)

In contrast, a no-fault state allows anyone married to obtain a divorce without proving that the other party did something wrong or is at fault for the breakdown of the marriage. It is not necessary for both spouses to decide to end the marriage. All is required is that one spouse decides that there is an irremediable breakdown of the marriage that cannot be rectified with marriage counseling or other efforts.

Does this mean that the information surrounding the situation(s) that led to the irremediable breakdown of the marriage are immaterial to the case? It depends. For instance, the court will likely find facts regarding adultery or other misbehaviors irrelevant. If domestic violence is involved, then any such evidence can be relevant towards the issuance of a Domestic Violence Restraining Order (DVRO), or towards the granting or denial of spousal support. If the misbehavior affects the children in such a way that a certain level or type of custody or visitation schedule may not be in their best interest, then the evidence may be relevant towards the determination of those issues.

Finally, consider that providing this important background information will often help attorneys navigate a tense, emotional situation in the best way possible. For instance, having a strong understanding of the dynamics of the relationship will help your attorney determine whether mediation is a plausible route. When in doubt, a frank and honest conversation with your attorney may help avoid a host of future (read: expensive) problems.


July 9, 2018 by Alice P. Cheng

Changes to Contra Costa and Alameda Family Law Courts

Contra Costa County: Effective today, Department 11 (Judge Brian Haynes) and Department 22 (Judge John Cope) have been reassigned from Pittsburg to courtrooms on the first floor of Wakefield Taylor Courthouse (725 Court Street in Martinez).

Alameda County: Starting July 16, 2018, Judge Lupe Garcia (Department 521) will be replaced by Judge Richard Seabolt. Also, Commissioner Michael Bishay will now preside in Department 516.


July 9, 2018 by Tracey C. Wapnick

Alice P. Cheng selected to Northern California Super Lawyers - Rising Stars List

Associate attorney Alice P. Cheng has been selected to the 2018 Northern California Rising Stars list. Each year, this honor is bestowed upon 2.5% of eligiblie candidates who are age 40 and younger or in practice for 10 years or less. The nomination process is peer-driven. Once nominated, the Super Lawyers research team evaluates nominees on 12 indicators of professional achievement and peer recognition. Finally, candidates are evaluated by other candidates within their primary practice area. Our firm is very proud of Alice's recognition by her peers as an attorney who exhibits excellence in practice.

To learn more about Super Lawyers, please visit their site. Congratulations, Alice!


April 17, 2018 by Alice P. Cheng

Earning Capacity and its Role in Determining Child Support

What happens when one spouse in a divorce is either earning below their earning capacity (sometimes referred to as "underemployed"), or is unemployed? Generally speaking, California courts expect both spouses to contribute to their cost of living. This is especially true if the parties have children. However, a number of exceptions and considerations apply. In this blog we analyze the role of earning capacity in relation to child support. The topic of spousal support requires a separate discussion.

A review of California Family Code §4053 will tell you a few things: In California, a parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life. Both parents are mutually responsible for the support of their children. The financial needs of children should be met through private financial resources as possible, and orders must ensure that children receive fair and sufficient support. Child support is determined based on a guideline formula. So far, all of these concepts seem reasonable. However, what if there is a party who is not working? How does the Court ensure that both parents are supporting their children?

The Court has discretion to consider a party's earning capacity instead of the parent's actual income, consistent with the best interests of the supported children. Family Code §4058(b). In order to do so, the Court will need to examine a number of factors to determine whether the parent has the ability and opportunity to work.

The "ability to work" factor relates to a party's age, occupation, skills, education, health, background, work experience, and qualifications. The "opportunity to work" means that a parent has an opportunity to work if there is a reasonable likelihood that a party could, with reasonable effort, apply his or her education, skills, and training to produce income. Opportunity is not limited to obtaining a job to work for someone else; the Court may also consider opportunities for self-employment.

If either ability or opportunity to work is absent, then earning capacity may not be considered. The Court may impute income to a parent if a parent is unwilling to work despite having the ability and opportunity to do so. Imputing income is to insert a certain level of income into the child support guideline calculator, even if that is not the amount being earned. The burden to prove earning capacity is on the party urging the Court to consider it. In other words, the spouse asking the court to impute income must use competent evidence to convince the judge.

While sometimes earning capacity can be proven using evidence of prior earning capacity (old W-2s, paychecks, and the like), this can be very tricky. Another possibility is to ask the unemployed/underemployed spouse to be examined by a vocational evaluator. The purpose is to complete an assessment of the party's ability to obtain employment based on the party's age, health, education, marketable skills, employment history, and current availability of employment opportunities. The focus is on a party's ability to get a job that would allow the party to maintain himself/herself at the marital standard of living. California Family Code §4331(a).

This is an area that can be full of far-reaching consequences for both spouses. To explore your options related to you or your spouse's employment and earning capacity, please contact our office for a consultation.


March 20, 2018 by Alice P. Cheng

The Family Residence - Who Stays and Who Goes?

When a married couple decides to separate or divorce, the question is often asked: who stays and who goes?

The answer depends on a number of different factors. One of the most important questions is whether the parties have children and whether one party bears the primary responsibility for caring for the children. Another important factor is whether a domestic violence restraining order is in place. Other important questions to ask is whether one party owns the house as his or her separate property. If the property is rented, are both names on the lease? If the house is jointly owned, the parties must also ask themselves whether one party will be better able to afford the upkeep of the property.

Depending on the rental market in the area and the cost of upkeeping the house (mortgage, property taxes, insurance, etc.), there may be other financial consequences that result. We will discuss these financial consequences in a separate post. Furthermore, moving out can affect other areas of the divorce, such as child custody and visitation.

Given the high stakes at hand, family litigants should always consult an attorney. Even if both parties are committed to settle their matters amicably, each litigant should fully understand their rights and responsibilities before reaching any agreements. Contact us today to set up a consultation.


March 9, 2018 by Alice P. Cheng

Changes with Family Court Services Mediation in Contra Costa County (read on if you have children)

If you have a divorce matter involving minor children or a parentage matter, you should be aware that Family Court Services in Contra Costa County has changed their mediation model effective March 2018.  When either party files a request with the court seeking child custody or visitation orders, the parties are ordered to attend mediation.  Mediation sessions, except for the most serious of matters, will now be confidential.  This means that the parties will be encouraged to reach an agreement regarding child custody and visitation during mediation, but if an agreement cannot be reached, then no recommendations will be provided to the judge.  The judge will instead decide on the matter at a hearing instead.

This is a very significant shift from the mediation model previously used in Contra Costa County. The potential pros and cons of this system, as well as other options, must be carefully considered in your case planning.

For a brochure on the changes in Contra Costa, please visit https://www.dropbox.com/s/8evym6w0mcqgjmk/FCS_Brochure.pdf?dl=0

As of this blog post, Alameda County continues to utilize a recommending model.

The attorneys at Wapnick Family Law are prepared to assist you in addressing your child custody and visitation issues. Contact us today for a consultation.


January 4, 2018 by Alice P. Cheng

Free Shuttle to Hayward Hall of Justice

Alameda County is now offering a free shuttle from Hayward BART to Hayward Hall of Justice.

More information here: https://www.acbanet.org/news/free-shuttle-hayward-hall-justice/


December 27, 2017 by Alice P. Cheng

Deductibility of Spousal Support (or "Alimony")

Did you know that the recent tax overhaul affects the way that spousal support is treated by the IRS? The Tax Cuts & Jobs Act of 2017 included a repeal of the alimony tax deduction.

Currently, spousal support is deductible by the payor spouse, and treated as income to the payee. This type of income shifting sometimes results in the maximization of dollars, where a payee spouse would be able to claim the support payments as income at their (presumably) lower tax bracket, while the payor spouse would be able to lower their taxable income by deducting the payments.

For agreements executed after December 31, 2018, the payor spouse cannot deduct the alimony payments, and the payee spouse will not need to list the payments on their return. This includes support modifications that take place after December 31, 2018. Spouses may have an incentive to resolve their issues in 2018 to before the repeal takes effect.

What about California's Franchise Tax board? How will the FTB treat spousal support? Currently, alimony and similar payments from a spouse or former spouse are taxable to the payee in the year received. The payor may take a deduction for these payments so long as certain requirements are met. It is unclear whether the California legislature will make any changes to California law considering the changes in the federal law.

At this stage, it is unclear how the difference in California versus federal tax laws will affect payee or payor spouses. Many unanswered questions remain - stay tuned.


December 4, 2017 by Tracey C. Wapnick

Wapnick Family Law Attorney Honored with Distinguished Service Award

Please join us in congratulating our associate attorney, Alice P. Cheng, for receiving the Distinguished Service Award by Alameda County Bar Association (ACBA) for her work with the Barristers Section. Alice has been a member of the ACBA Barristers Board since 2015. She has served as the secretary, vice chair, and chair. She will serve again as the chair for 2018, and will continue in her role as an ex-officio member of the ACBA Board of Directors. Alice also regularly volunteers for Volunteer Legal Services Corporation (VLSC)'s pro bono programs, including CLASP, family law day of court program, and the Oakland family law clinic. The award recipients will be honored at the 2018 Installation and Distinguished Awards Dinner on January 25, 2018. We are very proud of Alice's contributions to our legal community!

More information about the Installation and Awards Dinner here: https://us6.campaign-archive.com/?u=2f8c0f11ce0c6df11343ecb66&id=d06024055b&e=d530ea89aa

Distinguished Service Awards


November 10, 2017 by Alice P. Cheng

Mandatory Waiting Period for Divorce

We are often asked, "how long will it take for my divorce to be finished?" Did you know that California has a mandatory waiting period of six months plus one day? This means that the termination of your marital status cannot happen any sooner than that time frame. While it is possible to reach an agreement on all issues with your spouse sooner than the six months plus one day time frame, it means that you will remain married until the termination date arrives.

Other factors will affect the time frame for your divorce. This includes the complexity of your case, and the likelihood you will be able to reach an agreement with the other party. The more acrimonious the relationship, the more difficult it will likely be to settle your matter. Another considerable factor is the lack of funding in our public courts. Family law courtrooms are often overcrowded with heavy caseloads. As a result, you may experience a significant delay in obtaining hearing dates, especially if your matter must proceed to a court trial due to an inability to settle.
These are issues that our attorneys anticipate and are prepared to help you navigate. A consultation with one of our attorneys will provide you with a reasonable expectation as to the timing and complexity of your matter. Contact us today.


October 19, 2017 by Alice P. ChengCLASP Volunteering

Our attorneys volunteered at the Alameda County Bar Association/Volunteer Legal Services Corporation's Community Legal Assistance Saturday Program (CLASP). It is a legal clinic that is held the first Saturday of each month at the Alameda County Law Library. We joined volunteer attorneys from many practice areas, including immigration, real estate, employment, personal injury, and bankruptcy. Together, we assisted many self-represented litigants in navigating their family law matters. The attorneys of our office also regularly volunteer at the courthouse and at other family law clinics. As individuals and as a firm, we are committed to furthering the goal of ensuring equal access to the justice system.


July 7, 2016 by Alice P. Cheng

We've moved!

We have recently moved our offices from Oakland to Walnut Creek.  We are now located at 101 Ygnacio Valley Road, Suite 201.  Our office is very easily accessible by car and by BART.  Please call our office today for more information.

Call 800-491-1483 Or Send An Email To Schedule An Appointment

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy