Family Law

nicole fraser family law attorney san jose california divorce

CHILD CUSTODY
DIVISION OF PROPERTY
CHILD SUPPORT
SPOUSAL SUPPORT
RESTRAINING ORDERS

CHILD CUSTODY

California Law provides that custody of children should be resolved with the goal of keeping the children’s best interests in mind. Best interests includes virtually everything that affects the lives and welfare of children. Traditionally, best interests includes the historical custodial arrangements that have been in place prior to the time of the initiation of the dissolution or legal separation, the psychological impact of events on the children, the intimacy the children have had with each parent, etc. Generally, it is presumed that children should be able to see both parents on a regular basis in order to thrive. How best to assure that the children thrive in a custodial/visitation plan is a major goal of any custody determination. Ms. Fraser has the experience to aggressively present and defend her clients in the pursuit of their child custody/visitation goals and to advise his clients on how to best achieve their child custody goals.

While the Court will generally adopt custody and visitation agreements reached by parents, it is far more difficult for the Court to make a decision about what is in the best interest of the minor children when disagreements exist between the parents. Disputes over the custody and control of children are often some of the most stressful and emotionally charged issues in a Family Law case.  The Court would generally prefer  to assure that both parents have frequent and continuing contact with their minor children however the foremost concern is what is in the best interest of the minor children.  Best interests can include virtually all issues such as the historical relationship between the parent and child, the psychological stability of each parent and child, the availability of each parent to be with the child, the psychological reasons that each parent desires custody and any other issues that might affect children such as domestic violence, drugs, alcohol abuse, etc.  The bottom line is that a parent who is facing a child custody dispute with the other parent will definitely be dealing with an opponent who has intimate and detailed knowledge of the children as well as the other parent.  Dealing with such an opponent requires a well prepared, knowledgeable and aggressive attorney.

California is a joint custody state and wherever possible, both parties have a right to the frequent and continuing access to their children. While some custody time share arrangements allow for children to spend substantially equal time with both parents, often the work or educational obligations of parents affect their availability and opportunity to  be with their children. When parents have a significant dispute over access to their children, it is important for that parent’s position to be aggressively presented so that their custody schedule proposal as well as how that schedule will be maintained is clearly presented at the inception of the case.

Custody and visitation orders are always modifiable however the practical reality is that once an order is in place it is more difficult to modify that schedule unless a material change in circumstance occurs.  A parent should be prepared to be bold and clear as to what their custodial desires are from the inception of the case. Clarity will assist a parent in achieving  an amicable agreement with their spouse concerning their children.

Should circumstances change however, the Court must consider whether a modification of custody/visitation orders should be made.

DIVISION OF PROPERTY

California is a community property state. Generally speaking property acquired by either spouse during the marriage is typically considered community property, and upon dissolution or legal separation, will be divided equally between the parties.  Separate property is an exception to this rule. Separate property is property which a spouse has acquired prior to marriage or received during marriage as a gift or inheritance, or acquired after the parties separate. Separate property is typically awarded to the party acquiring it. Some property however can have a mixed community and separate property interest such as a home or a business which was owned by a party prior to marriage and then maintained by that spouse during marriage. In such circumstances a community property interest in a separate property asset can be created. In some circumstances a spouse owns a home prior to marriage and then during marriage adds the other spouse’s name to the title. In these types of circumstances an asset can have both a community  and separate property characterization which will affect the evaluation and division of that asset.

Retirement benefits are just one of many assets that can be divided as community property. Retirement benefits whether they be profit sharing, pension, 401k, 403b, or IRA benefits can all be divided in an equal fashion by utilizing Court orders that segregate and divide those retirement benefits between the parties.

Characterization of property as community or separate can be the subject of interpretation and only an experienced attorney can assure a client that the property is equitably divided.  Businesses can also be the basis of property disputes and it is important that business evaluations be completed in a thorough fashion to assure a fair valuation and division.

CHILD SUPPORT

Child support in California is viewed as a priority obligation and that obligation is mandatory in California. The amount of child support ordered by the Court however is based upon a variety of mathematical formulas which balance the income and expenses of the parents and factor in the amount of time that the children spend with each parent. Regardless of which parent we represent, we are able to establish a fair and reasonable amount of child support based upon the law and the unique circumstances of our clients.

SPOUSAL SUPPORT

Spousal support is not available in every action. It is more routinely awarded in marriages of extended duration or where there is a disparity of incomes between spouses.  While spousal support, or alimony as it was previously defined, is less difficult to obtain for a short period, permanent spousal support is based upon a variety of factors which must be persuasively presented, depending on which side of the equation a party is on.  A payor of support many times wishes to minimize that support obligation while the recipient of support desires to maximize that benefit.  We are experienced in representing spouses and parents on both sides of that equation and Ms. Fraser has great skill in maximizing or minimizing the payment of support depending on the interests of his clients.

RESTRAINING ORDERS

When a spouse or other family member makes threats or inflicts physical harm, the California Family Code provides civil protections and backs up those protections with both civil and criminal consequences. Ms. Fraser’s unique Family Law and Criminal Law background can assist you applying for or aggressively defending against a restraining order.