California Appellate Court Rules CalPERS Credit Is Community Property (In Re Marriage Of Green)

In a case of first impression, a California appellate court was asked to consider how to classify four years of credit in the California Public Employees’ Retirement System (CalPERS) that a husband by the name of Timothy Green elected to purchase with community money during his marriage to his wife Julie. Timothy was able to purchase this credit due to four years of military service that he performed prior to the marriage. The trial court held that since the military service was prior to the marriage, the credit purchased during the marriage was Timothy’s separate property but that Julie could receive reimbursement of community property money that was spent on the credit. However, the appellate court reversed the trial court’s decision and ruled that the four years of credit was community property was community property because it was purchased with funds during the marriage and Julie was entitled to more than just a reimbursement.

The Court held in its decision that was filed on May 16, 2012:

Here, the military service credit was indisputably purchased during the marriage with community funds. We agree with Julie that because the contractual right to receive four additional years of retirement credit based on premarital military service was obtained during the marriage, it was “stamped a community asset from then on”…notwithstanding the fact that the credit was based on service that predated the marriage…”

Farzad Family Law stays on top of California Appellate and Supreme Court decisions that affect divorce and family law. Contact us today for a case strategy session to go over the facts of your Orange County divorce and family law case. Our lawyers are intelligent and experienced and ready to help you.

Warmest Regards,

B. Robert Farzad
FARZAD FAMILY LAW, APC
Orange County Divorce & Family Law Attorneys
1851 E. 1st Street, Suite 1150
Santa Ana, CA 92705
Telephone: (714) 937-1193
Facsimile: (714) 937-1192
email: robert@farzadlaw.com

Does A Flat Fee Option Make Sense For Your Orange County Divorce Case?

Most Orange County divorce lawyers won’t give you a flat fee quote for your divorce case. They won’t do it because they claim to be unable to “predict” how much time will go into it. While predicting time is difficult, that shouldn’t prevent you from having stability to the fees you pay. Here are how Farzad Family Law, experienced divorce lawyers in Orange County, can give you a predictable fee structure that will help you budget your divorce.

1. If your Orange County case is uncontested (you and your spouse agree on everything), we can quote you a flat fee to get the divorce petition filed, served and prepare the settlement agreement between the two of you. Our reasonable flat fee quote can take you from the beginning of your case to its end and save you thousands of dollars.

2. Sometimes, custody or support become the only disputed issue between you and your spouse because the two of you don’t have assets to divide. No problem. Farzad Family Law can quote you a flat fee to handle your custody or support issues in Orange County Family Court, knowing that once you have that done, everything else will fall into place.

3. If you and your spouse are in settlement negotiations, he or she has a lawyer and you don’t, we can quote you a flat fee to handle the negotiations on your behalf. Farzad Family Law’s knowledge and experience will give you the best chance of reaching a fair settlement and putting your Orange County divorce case successfully behind you.

4. Got a last-minute trial? Call us. Depending on your case, we can quote you a flat fee and aggressively represent you in court.

5. Post judgment custody or support issues are very common and it doesn’t have to break you financially. We will give you an affordable case strategy session and a quote that will take you through whatever post judgment divorce or paternity case you may have.

Call or email us today for your case strategy session and a quote that will ensure you representation from the top Orange County divorce and family law lawyers, Farzad Family Law.

Warmest Regards,

B. Robert Farzad
FARZAD FAMILY LAW, APC
Orange County Divorce & Family Law Lawyers
1851 E. 1st Street, Suite 1150
Santa Ana, CA 92705
Telephone: (714) 937-1193
Facsimile: (714) 937-1192

Appellate Court Rules That A CalSTRS Disability Allowance Is Not Community Property

The case is called “IN RE MARRIAGE OF WALKER”. It is a 2012 sixth appellate district case. In it, the Court held that a CalSTRS retirement disability allowance is not community property because it replaces lost earnings during the period of post-separation, preretirement disability.

The Court wrote that the wife in the case, Elena, was not been deprived of her community property share of her ex husband, Ralph’s, service retirement by Ralph’s receipt of a CalSTRS disability allowance. Elena received her entire community property share of Ralph‟s service retirement when the domestic relations orders (DRO) “ordered CalSTRS to place her community property share of Ralph‟s service retirement (service credits, contributions, and interest) into a separate nonmember CalSTRS account, over which she has independent control. The Court notes that Ralph did not elect to receive a disability allowance in lieu of a service retirement. He was not eligible for a service retirement at the time when he became disabled, and his disability allowance will terminate when he becomes eligible for a service retirement, if not sooner if he ceases to remain disabled.”

The Court considered these facts undisputed and since the retirement income was viewed as replacing Ralph’s lost earnings while he was disabled and before he received his retirement, it was Ralph’s separate property.

The Court’s decision is a correct one. Where Elena went wrong was her failure to understand that the disability payments were not anything that Ralph earned during the marriage and it was not in any way tied to his employment service during the marriage. Simply, it was there to pay Ralph because of his disability post separation and before he was eligible to obtain his retirement benefits.

New Law Allows Children To Testify More Freely In California Child Custody Cases

Before January 1, 2012, children were permitted to testify in Court on divorce and family law cases in California but only based on strict guidelines. Starting January 1, 2012, the law has become more liberal and now allows parents more freedom to allow their children to testify when there is a “preference” to live with one parent over another.

The new law is California Family Code 3042. It reads:

(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.

(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not
in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.

(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator,
an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry
in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.

(g) Nothing in this section shall be construed to require the child to express to the court his or her preference or to provide other input regarding custody or visitation.

(h) The Judicial Council shall, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for obtaining information or other input from the child regarding custody or visitation.

(i) The changes made to subdivisions (a) to (g), inclusive, by the act adding this subdivision shall become operative on January 1, 2012.

This law can have both a positive and negative impact.

While children should preferably not be placed in the middle of custody disputes between parents, there are instances when a child’s testimony is necessary because that child can shed light on issues of abuse and neglect to him or her as well as domestic violence between the parents. In such situations, children should not be placed with an abusive parent, even if the abuse is not physical but is psychological or emotional. A child who is 14 years or older can help the court understand what really is going on inside the household because, often, child abuse because a “he said” versus “she said” between parents and it’s difficult to reconcile who is telling the truth.

The same is true about situations where a parent wants custody but not to actually spend time with the children but rather to reduce his or her child support or increase the other parent’s child support. Custody and visitation isn’t intended as leverage against the other parent but as a means to give the child frequent and regular contact with both parents. If one parent isn’t spending time with the child, that child can let the Court know that and custody and visitation can be changed as a result.

The downside to this law comes into play in situations where a child has been alienated from one parent. It’s unfortunately far too common for a mother or father to influence a child through guilt, lies or emotional abuse and pit the child against the other parent. This happens most frequently when a parent convinces the child or children that the other parent was “at fault” for the divorce and left the family. In such situations, a child testifying doesn’t really express his or her true feelings. Rather, the child expresses the negative emotions of the parent who did the alienating.

At Farzad Family Law we deal with custody issues on a daily basis. We have seen it all. There are circumstances when a child’s testimony is necessary and other situations where an investigation or evaluation must come first to find out if the child is likely to tell the truth or just become one parent’s weapon against the other. We have had great success for our clients in protecting the children from bad parents. Part of that is because we only represent good parents, those who are well-meaning and are child centered. Another part of that is that we are diligent in our investigation and evaluation of your Orange County child custody case and issues before we ever step into court.

Call or email us today to discuss your Orange County child custody case. Good parents rely on us to help them and their children get through this most difficult time in their life. You should too. We’ll help you get through it and protect the most precious assets you have in your life – your children.

Warmest Regards,

B. Robert Farzad
FARZAD FAMILY LAW, APC
Orange County Divorce & Family Law Attorneys
1851 E. 1st Street, Suite 1150
Santa Ana, CA 92705
Telephone: (714) 937-1193
Facsimile: (714) 937-1192