San Diego & Orange County Lawyer Blog |

Gathering strength during divorce

2013-05-14T20:19:05Z

Family law attorneys are generally full of helpful advice about navigating the legal processes associated with child custody matters, divorce, domestic violence and other issues affecting families that are facing changes and challenges. A great deal of this advice directly pertains to constructing legal agreements, navigating the court process and financial consequences of various options. However, some of the advice that attorneys have to offer is more personal.

When navigating the divorce process, it is not often simply enough to file paperwork properly and ensure that you show up to court dates on time. If you do not handle your emotions and mental reactions to the process in healthy ways, it can compromise the outcome of your negotiations. Strong emotions can cause individuals to react impulsively, out of anger, fear, denial, greed, sadness or guilt.

]]> These reactions often inspire attorneys to advise their clients to take good care of themselves and to gather their strength during the process. It seems like advice more likely to come from the mouths of counselors. But it is advice directly tied to the success or challenges that you will encounter during your divorce.

It is now arguably more important than ever to take excellent care of yourself. Divorce can be draining but it can also be empowering. Regardless of whether or not you can take strength directly from your decision to divorce or not however, it is important to find strength and peace where you can. Engaging in very healthy behaviors, pampering yourself and working through your emotions outside of the negotiating room are great places to start.

Source: Huffington Post, “Breakup Advice: The Greatest Breakup Advice My Mom Ever Gave Me,” May 12, 2013

Considering the concept of permanent alimony

2013-04-22T14:30:56Z

When couples decide to divorce, they must construct an equitable settlement agreement detailing how their assets, income and debt will be divided. In most states, agreements detailing division of property must reflect equitable distribution of marital assets. In addition, spousal support or alimony is often granted to enable one of the spouse's to remain at the standard of living that the couple had previously achieved.

There are many, many reasons to grant and to deny spousal support in any given situation. Only in rare circumstances may permanent alimony be granted. Nevertheless, many question if permanent alimony should ever be ordered by the courts.

]]> Generally, alimony is ordered when a spouse either has special needs or requires time to obtain either education or job training in order to retain the couple's standard of living on his or her own. However, it may be impossible for that spouse to do so. If the spouse has a physical or mental condition that impairs his or her ability to earn self-sustaining income, or if that spouse must take care of a special-needs relative, permanent alimony may be the only way to ensure that the spouse can financially survive.

On the other hand, permanent alimony should not generally be granted in cases involving spouses who are capable of achieving education or job training, are not elderly and do not have either conditions or responsibilities that require their former spouse to support them.

Wedding vows often include the phrase "until death do us part." In rare divorce cases involving necessary permanent alimony, even separation cannot break this particular promise.

Source: U.S. News & World Report, "Taking the 'Permanent' Out of Permanent Alimony," Geoff Williams, Jan. 23, 2013

Chapter 13 Bankruptcy and Voluntary 401k Contributions

2013-04-01T17:17:44Z

The latest case garnering the attention of bankruptcy practitioners and Chapter 13 trustees in the Southern District Bankruptcy Court is the Ninth Circuit case In re Parks. Parks v. Drummond (In re Parks), 2012 Bankr. LEXIS 3762 (B.A.P. 9th Cir. Aug. 6, 2012).

When a person files a bankruptcy under Chapter 13, he or she will create a plan to repay his or her creditors. A plan is typically monthly payments over three to five years. (Whereas a person in a bankruptcy under Chapter 7, often pays nothing to creditors).

The amount a debtor can pay to creditors is determined, in part, by his or her income and expenses, the difference of which is identified as disposable income. What In re Parks clarified last year is that voluntary contributions to a 401k plan must be included when calculating disposable income.

This basically means that the Court wants to consider the possibility that a debtor pay more money to creditors at the expense of the debtor saving money towards his or her 401k plan.

]]> Therefore, during the course of a bankruptcy under Chapter 13, a debtor may need to suspend payments voluntarily made to a 401k, even when it is automatically deducted from pay. However, contributions made prior to filing for bankruptcy are typically safe from creditors and not applicable to Parks.

The Parks Court also addressed the repayment of 401k loans. When a person borrows money from a 401k, the deductions from pay to repay the loan are not included when calculating disposable income.

This is one of the many rules and cases that attorneys must consider when counseling a client to file a Chapter 13 bankruptcy.

To learn more on Chapter 13 Bankruptcy and San Diego and Orange County Bankruptcy Attorneys view here: www.boydcontreras.com/bankruptcy.

In custody matters, does a child's opinion 'count' with the court?

2013-03-27T18:04:39Z

When courts approach the subjects of child custody, visitation and parenting time, they are bound by a common standard. That standard is often referred to as the "best interests of the child" standard. This standard helps judges determine where children should live and what child custody specifics should entail for particular families. Young children may need their best interests determined for them. But older children and teens likely understand at least some of what constitutes their individual best interests.

As a result, courts increasingly pay attention to the opinions of children and teens as they age. The ages at which children's opinions may truly influence the outcome of a child custody dispute vary from state to state. But generally older kids may request to be heard by a family law court and teens must generally be heard if they request to voice their opinions.

]]> It is important to note that the best interests standard as interpreted by any given judge may override the opinions voiced by children and teens. For example, if a teen professes to want to live with a parent who is abusive or has a tendency to alienate the other parent, the court may see fit to overrule that teen's opinion.

However, if the family dynamic is generally healthy and the child or teen voicing an opinion is generally healthy, chances are that the courts will take increasing notice of this opinion the older that the child or teen is. This does not mean that parents should push kids or teens into voicing a certain opinion. Rather, if they want to be heard, kids and teens generally have the opportunity to voice their preferences.

Source: Huffington Post, "Who Gets The Kids?" Jacqueline Harounian, Nov. 23, 2012

Child Custody Disputes Involving Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA)

2013-03-08T01:03:38Z

Our Managing Associate of the Family Law Division of Boyd Contreras, APC, Elyse Butler recently won a complex jurisdictional matter related to a child custody dispute and the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA).

The UCCJEA vests "exclusive and continuing jurisdiction" for child custody litigation in the courts of the child's "home state"

Family Code section 2010 states that the court in the minor child's "home state" should make orders concerning the child. But, in this case, it was unclear whether California or another state where the child visited for extended periods of time was the child's home state. It could have been argued that both states met the definition of "home state."

Ms. Butler's ability to use the evidence code successfully as well as her knowledge and skills as a litigation associate for the family law division, enabled her to handle such a complex matter. Ms. Butler's ability to think fast and prepare properly enabled her to present strong evidence and examination of the witnesses involved such that the Family Law Judge was able to make a clear decision in favor of our client.

]]> Under Family Code section 3427 there are eight factors in which the court must consider to determine whether the matter should be heard in California or a more convenient state. After arguing the eight factors, in our case, the court found that jurisdiction remained with California as our client desired. This eliminated the Opposing Party from getting "home turf" advantage and costly flights for appearances in another state.

In this case, and other custody disputes involving the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA), it is necessity to have strong litigation attorneys who are qualified to examine witness on the stand and argue effectively in trial.

View more on Boyd Contreras, APC and San Diego child custody attorneys and Orange County child custody lawyers here.

Boyd Contreras, APC is Continuing its Expansion!

2013-02-12T01:35:13Z

Boyd Contreras is excited to announce our expansion in Downtown San Diego's iconic Emerald Plaza building. As we are currently located on the 12^th floor of the building, we are preparing to move up to the 15^th floor into a more expansive office space and the new home to Boyd Contreras, at 402 West Broadway, Suite 1500. We anticipate the doors of the new office to open this Spring!

Custom built for Boyd Contreras APC, the new office spans over 8,000 square feet, complete with ocean front views throughout, 3 conference rooms, a trial preparation room and state of the art litigation technology to continue to assist our clients efficiently and effectively. Our new headquarters offers cutting edge technology in a modern atmosphere and an incredible space plan.

We share pride in the Emerald Plaza's top-notch amenities and environmental values, making our choice to move within the same facility an easy one. Located in the heart of downtown, the building itself is a landmark, offering panoramic views of the Pacific Ocean, San Diego Bay, Coronado Island, and the downtown cityscape. To compliment it's aesthetic beauty, the building is committed to green initiatives and energy efficiency, earning it the General Electric Energy Star Award in 2008.

As always, we continue to provide premier legal services for our clients in matters involving Business Litigation, Real Estate Litigation, Entertainment Law, Family Law, Bankruptcy, and Trust and Probate Litigation.

Stay tuned for progress updates and photos as our contractors continue construction of our incredible new office!

To learn more about Boyd Contreras, APC's San Diego lawyers and Orange County attorneys, click here.

Post-divorce, couples are sometimes inspired to keep fighting

2013-02-11T14:00:54Z

In the movies, the delivery of final divorce papers signals is portrayed as a solid reason for couples to achieve closure. And in real life, many times it is the conclusion of divorce settlement proceedings that allows individuals to move on emotionally, physically and financially from their former marriages. However, issues of complex property division sometimes inspire couples to continue fighting long after an allegedly final settlement has been reached.

Take for example, a couple on the East Coast whose divorce has long been finalized. During the couple's divorce proceedings, one spouse was granted custody of their child and another spouse was granted custody of the remaining frozen embryos that were originally conceived to help the couple get pregnant with their first child and any future children they might have together.

]]> The parent who has custody over the embryos has admitted that she plans on using them to conceive another child or more children. However, her former husband is likely appealing the custody decision in order to bar his former wife from conceiving more children who will biologically be his too.

This special case that could potentially be appealed again and again up to the United States Supreme Court is an extreme example of the battles that can be fought long after final divorce papers have been signed. However, the idea that a couple's disputes could linger beyond formal divorce proceedings is a surprisingly common one. It is important to receive experienced legal counsel to see you through to the end of formal divorce proceedings. But it is often just as important to seek counsel when you have a reason to engage in a dispute with your former spouse after final papers have been signed.

Source: NBC Washington, "Judge Grants Stay in Divorced Couple's Battle Over Embryos," Tracee Wilkins, Jan. 14, 2013

Dolores Contreras Discusses Bankruptcy

2013-01-16T18:39:18Z

View the video (Spanish)

Dolores Contreras sat down with Abriendo Puertas's president and host, Claudia I. Ortega, to discuss details regarding bankruptcy.

Ms. Contreras states, "Some of the benefits of declaring for bankruptcy are: you can stop a foreclosure of your home, you can stop your wages from garnishment, you can remove all credit card debt and you can stop a lawsuit filed against you.

It is not very hard to qualify for bankruptcy, generally, everyone qualifies. It is important that you speak with an attorney about your specific situation and see if you qualify for a Chapter 7 or Chapter 13."

At a 2011 event, Ms. Contreras addressed the topics of shortsales, modifications, bankruptcy and which of those you should do first, the difference between 7 and 13, how to eliminate a second loan, what assets can you keep during a bankruptcy, and how a bankruptcy affects your credit.

To learn more about bankruptcy and how a Boyd Contreras, APC San Diego bankruptcy attorney or Orange County bankruptcy lawyer can assist you, click here.

"Fiscal Cliff Deal" Signed Into law. What Does It Mean For Us?

2013-01-04T01:27:14Z

Yesterday, President Obama signed the 157 page American Taxpayer Relief Act of 2012 or "Fiscal Cliff Deal" into law. What does it mean for us? Here are the highlights:

1. Most of the "Bush Era" tax cuts have become permanent.

2. Unemployment benefits have been extended for an additional year.

3. The employee's payroll tax (or withholding) will increase 2% over the 2012 rate for most wage earners.

4. The individual income tax rate from 2012 will remain the same for single filers making under $400,000.00 per year ($450,000.00 per couple filing jointly). For those with incomes above this threshold, the tax rate will rise to 39.6% from 35%.

]]> 5. For those in the 39.6% tax bracket, the rate on long term capital gains and dividends increases to 20% from the 2012 rate of 15%.

6. The Estate Tax on amounts over the exemption ($5 Million in 2013, to be inflation adjusted going forward) will increase to 40% over the 2012 rate of 35%, thus increasing the importance of your Estate Tax strategy.

What the Fiscal Cliff Deal did not substantially deal with are the automatic spending cuts that resulted from the last round of congressional negotiations. The automatic spending cuts have been delayed until the end of February, 2013. This means that the stage has been set for another congressional battle over the issue of spending, and probable market turbulence created by the uncertainty.

- Thomas Georgianna, Associate Attorney

Contact Boyd Contreras, APC to discuss your estate planning needs. To find more information about Estate Planning click here.

Please note: TAX ADVICE NOTICE: To ensure compliance with the requirements imposed by the United States Treasury and IRS, we inform you that any federal tax advice contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing, or recommending to another person any transaction or matter addressed herein.

When parental physical disability affects child custody disputes

2012-12-28T16:00:03Z

The failure of the Senate to ratify the Convention on the Rights of Persons with Disabilities has recently inspired the media to focus on the struggles of disabled persons both nationally and overseas. Though the treaty was primarily intended to support expansion of rights for disabled persons overseas, Americans with disabilities still face the kinds of discrimination that should inspire our society to reevaluate and reform various regulations and institutions that affect their daily lives.

One situation that requires reform is the family legal system's approach to child custody issues involving disabled parents. More than six million American children have at least one parent who is disabled, according to a new report entitled, "Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children." According to the report's authors, disabled parents are more likely to lose child custody following divorce and in some cases, as a matter of course.

]]> Even though Americans with Disabilities have benefitted from greater federal protection over the past two decades, many in the legal profession and in the wider population remain ill-educated on the unique realities of parenting as a disabled adult. As a result, too often disabled adults suffer from unintentional bias during child custody disputes.

The Supreme Court has long honored the explicit right of fit parents to retain rights to their children. Yet society has not fully embraced the idea that disabled individuals can indeed be completely fit parents. This bias needs to be immediately addressed and remedied for the benefit of both fit disabled parents and their children who need them.

Source: ABC News, "Disabled Parents Face Bias, Loss of Kids: Report," David Crary, Nov. 26, 2012

Navigating the holiday season during or after divorce

2012-12-11T20:52:27Z

The holiday season is upon us. Whether you ordinarily adore, loathe or are indifferent towards the holidays, chances are that if you have recently finalized, are in the middle of or are contemplating divorce, your approach to this season is more negative than it usually is. However, it is possible to weather the next few weeks with grace even though it may be a particularly challenging time.

When approaching the next few weeks, it is critical to be as prepared as you can. Chances are that you will be emotional and will need comfort. You will also likely be feeling more stressed than usual, regardless of whether you are celebrating the holidays in a group, by yourself or are attempting to ignore the holidays this year.

]]> If you can prepare for emotions to hit you hard, you can also plan for ways to deal with them in a healthy manner. Perhaps scheduling a massage, an extra counseling appointment, a movie date with friends or some time to just curl up on the couch with a book would be a good idea for you. The key to navigating a challenging holiday season is to plan ahead in order to ensure that you take the best care of yourself possible.

Failure to anticipate these needs may lead you to make destructive decisions in everyday life, at work, on the road, or with regards to your divorce settlement or child custody arrangements. Strong emotions are completely normal during the divorce process. But failure to anticipate them and address them in healthy ways may harm you later on.

Source: The Columbia Daily Tribune, "Facing the holidays after a separation or divorce," Kathy Leonard, Nov. 16, 2012

Pre-Wedding Jitters May Indicate Increased Chance of Eventual Divorce

2012-09-20T18:28:31Z

According to a recently released study published online in the Journal of Family Psychology, those couples suffering from pre-wedding cold feet may have reason to worry as this may indicate they are more likely to divorce in the future.

The study - which was conducted by researchers at the University of California, Los Angeles - monitored a total 464 newlywed couples for four years. What they discovered was that those people who had premarital doubts were generally less satisfied with their marriage, moreover, and most surprising, it was found that women who had experienced uncertainty, but got married anyway, were more likely to get divorce by two-and-a-half times.

The study had determined that among newly married couples, 38 percent of women and 47 percent of men had premarital uncertainty, but, even though men were more likely to have doubts, doubts among women were proven to be a better indicator of future divorce.

]]> Specifically, of the women who claimed to have premarital uncertainty, 19 percent were divorced within four years - as opposed to only 8 percent divorced among women who didn't have doubts. Among men, 14 percent of those claiming to suffer from cold feet were divorced within four years.

It is important to note however, that researchers do not believe all premarital doubts are equal. In a statement to USA Today, lead researcher/author Justin Lavner stated, "The question was 'Were you ever uncertain or hesitant about getting married?' Just a yes or no. The simplicity is great because it's such a basic question. But unfortunately, it doesn't allow us to say if it's doubts about the partner or doubts about marriage in general. Doubts specific to the relationship or partner are generally worse than doubts about marriage in general."

Source: USA Today, "Pre-marriage doubts signal unhappy unions, divorce," Sharon Jayson, September 14, 2012

Our firm often handles situations in which couples are considering a divorce. If you would like to learn more about our family law practice, please visit out San Diego Divorce page.

As Baby Boomers Approach Retirement, Many Begin to Contemplate Divorce

2012-08-24T20:40:10Z

Today's media seems to constantly bombard us with news of the most recent celebrity divorces, especially here in California. Many of these marriages tragically end after only a few years - and in some cases, only a few months. However, a recent uptick in a particular category of divorces seems to be indicative of a trend on the opposite end of the divorce spectrum - namely, "gray divorces".

The phrase "gray divorce" generally refers to divorces among those couples aged 50 and over - often times these couples have been married for decades, not just years. And while overall divorce rates have generally remained stable over recent years, according to research conducted by Bowling Green State University gray divorces have doubled over the last 20 years.

There have been many explanations posited for this recent trend, among them is the fact that divorce no longer carries the same stigma it did in generations past. In addition, as baby boomers begin to retire they start to question whether they want to spend the rest of their lives with their current spouse - especially given that they are likely to live at least another 30 years.

]]> One issue that routinely arises in gray divorces that is not shared with most divorces following short-lived marriages is the fact that couples going through gray divorces have amassed comingled assets for decades - making them very difficult to divide during a divorce.

Given that older couples generally have a higher net worth, dividing their numerous assets - such as real estate, bank accounts, pensions and retirement accounts - can be an arduous process that requires much more work than divorces among younger couples. Also, since most experts believe gray divorces will only grow in the coming years, these difficult cases are not likely going anywhere anytime soon.

Source: MSNBC, "'Gray divorce': Why are more seniors separating?" Dr. Robi Ludwig

Our firm often handles divorces in which couples have a high net worth. If you would like to learn more about our divorce practice, please feel free to visit our San Diego High Net Worth Divorce page.

Trade Secret Case Against Chinese Company Encounters Roadblock

2012-07-26T18:51:00Z

Earlier this week, a U.S. Federal District Court Judge issued a ruling stating that federal prosecutors had not appropriately notified a Chinese company of a criminal indictment pending against them - specifically, an indictment regarding allegations the Chinese company was involved in a conspiracy to steal trade secrets from DuPont.

Prosecutors had argued that their notice to the Chinese company was sufficient since they gave notification to the company's U.S. agent. However, the judge's ruling noted that prosecutors had not provided enough evidence to show that the Chinese company exerted sufficient control over the U.S. company in order for it to be considered an agent.

Currently, it is unclear how the case will proceed, but the district court judge gave prosecutors until August 16 to determine what they want to do next.

Misappropriation of Trade Secrets

Even though the above-referenced case involves criminal allegations of espionage, it is important to note that a company in California who misappropriates another company's trade secrets could also be held liable in California civil courts.

]]> The definition of trade secret misappropriation in California can be quite complex, but at its most basic level it includes any acquisition, disclosure or use of another company's trade secret by someone who knows, or has reason to know, the trade secret was obtained by improper means.

As mentioned above, the definition of misappropriation in California can be quite complex - meaning that the slightest change in circumstances could be the difference between misappropriation or not. A knowledgeable trade secret attorney can help provide guidance on whether or not you may be entitled to damages following a trade secret misappropriation.

Source: Reuters, "U.S. prosecutors dealt setback in China economic espionage case," Dan Levine, July 23, 2012

Trial Date Set for E-Books Antitrust Lawsuit Involving Apple Inc.

2012-06-29T18:44:26Z

Unless a settlement is reached in the meantime, California-based Apple Inc. - now the world's most valuable company - will likely face a trial sometime next year regarding allegations of e-book price-fixing, a federal judge recently decided.

The lawsuit, filed by the U.S. Department of Justice, and joined in by 15 states, alleges that Apple and various publishers were involved in various anticompetitive behavior, specifically, that they conspired to fix the prices of e-books. U.S. District Judge Denise Cote, who is overseeing the consolidated antitrust litigation, set a trial date of June 3, 2013.

Recently, federal regulators have increase anticompetitive enforcement against industries they believe may be involved in price-fixing agreements - industries ranging from automotive parts to healthcare. Regulators are also looking more closely at Apple given their industry dominance of late. Officials are looking to see if Apple's music retail and digital publishing businesses may be inhibiting competition in these market areas.

]]> While this particular lawsuit involves alleged violations of federal law and not California law, it is important to note that California law does provide various remedies for antitrust, deceptive or fraudulent business behavior. For example, California's Unfair Competition Act can not only be used for consumer protection, but also in disputes between companies and allegations of commercial fraud.

Whether you believe you have been a victim of deceptive business behavior, or someone has accused you of engaging in unfair business practices, an experienced business litigation attorney can help advise you of your rights and options.

Source: Bloomberg Businessweek, "Apple E-Books Antitrust Case by U.S. Set for 2013 Trial," Patricia Hurtado, June 23, 2012