Keeping your Dignity

What is keeping your dignity? Here are the things I tell clients when we talk about keeping dignity.

  • The course your divorce takes depends on you. If your spouse wants nothing else but to push your buttons, you have to keep your dignity. If you react every time, you will give your spouse exactly what he/she wants. There are also opposing lawyers who push buttons. The main thing to remember is not to respond to the high-conflict people’s behavior the way they want you to respond.​
  • Your divorce lawyer should negotiate for you, but you decide whether to settle or not.  Your willingness to negotiate doesn’t mean that you are letting the other party take advantage of you. Write down things that are important to you and rank them.  Give in on things that you don’t really care about.  When you negotiate and make a compromise, you don’t get everything you want and neither does your spouse.  You can achieve way more by good-faith negotiation than good-faith litigation.
  • I have already talked about the importance of comfort level whew hiring a San Jose divorce lawyer. Each lawyer operates a certain way and each lawyer has a personality. Make sure that you and your lawyer can work together. When it comes to your case, make sure you and your lawyer are on the same page. If you want an amicable cost-effective divorce, hiring a bulldog is not a way to go.
  • Control your emotions. No matter how you feel about your spouse, the opposing counsel, or the process, your emotions should not get in the way. Find a safe place to talk about how you feel. Also, don’t forget that there is life outside of the divorce court. Do things you enjoy. Spend time with friends and family. Tell people who are important to you that you love them.
  • Don’t blame your divorce lawyer if you don’t get what your friends or family got when they divorced. Friends and family love to talk about what divorce was like for them. They may be a good motive behind talking to you about their experiences. Or, they may do this to make themselves feel better that they got a better result than you (or so they think). Yes, your friend may be paying less in child support, but there are many reasons for that. You are probably tired of reading on lawyers’ websites that every case is different. So, since you already know that, don’t compare yourself to others.
  • I also talked about being reasonable. If someone in the room is not reasonable, we want to make sure that it is the other side and the opposing counsel.

​Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide experienced and caring representation in family law matters to every client. 

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Divorce and Bankruptcy

Many people going through divorce use credit cards to finance their living expenses.  This is how questions about what to do with the mounting debt come up.  People have different feelings about bankruptcy.  However, depending on your situation, filing for bankruptcy may be the solution you need.  The idea behind bankruptcy is giving someone a second chance.  Bankruptcy may even improve your credit rating.
Consumers can file for Chapter 7 or Chapter 13 bankruptcy.  Chapter 7 bankruptcy is “debt elimination.”  If you qualify for Chapter 7 bankruptcy, your non-exempt assets, if you have any, are sold to pay your unsecured creditors and your debts are discharged.  Chapter 13 bankruptcy is “debt restructuring.”  You propose a repayment plan that the court approves.  Your debts are discharged after you complete your plan.  Spousal support and child support cannot be discharged in bankruptcy.  Whether Chapter 7 or Chapter 13 bankruptcy is right for you depends on many factors.

There are good reasons to file for bankruptcy before divorce.  If you and your spouse can file together, it eliminates the need to file twice and to pay for 2 petitions.  Elimination of debt before you divorce means you have one less issue to negotiate.  Also, if you and your spouse eliminate your debts together, you will not be responsible for your spouse’s debts.  Even though your marital settlement agreement states that your spouse is responsible for his/her own debts, this provision will not protect you from creditors.  Your marital settlement agreement does not bind your creditors.  If you are struggling with the bills because you and your spouse separated or the bills piled up during the divorce, talk to a San Jose divorce lawyer who can point you in the right direction.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide experienced and caring representation in family law matters to every client.

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Things you should know about Asset Division

It seems straight forward that you would divide everything you have in half when you divorce.  But, sometimes, things may not be that simple.  Common issues in a San Jose divorce are figuring out how to divide a house, a businesses, a pension plan, stock options, and a property located in a foreign country.  You already know that California is a community property state. But, California also recognizes separate property interests.   Understanding the difference between community property and separate property can mean the difference between making smart decisions and a financial ruin.
Here are some examples of when community property and separate property interests come into play.  You and your spouse buy a house together.  Your parents give you money and you use it for the down payment.  Can you get this money reimbursed to you?  You bought your house before you got married.  Your spouse moved in and you paid the mortgage from your earnings.  The house also grew in value. Does your spouse get anything, and if so, how much?  You bought your house before you got married and, a few years later, you put your spouse on title.  Will your house now be divided 50/50?  You and your spouse bought a house (or acquired an asset) together with other family members.  How will this asset be divided?  You had an account before you got married and you started putting money into that account during the marriage. How will the money in your account be divided?

Because each family’s assets are different, a San Jose asset division lawyer can tell you how the California law applies to your case.  A San Jose asset division lawyer can ensure that your interests are protected.  If you have questions about asset division and wish to set up a meeting, call my office at (408) 483-3012 or get in touch by telling me about your issue through the online contact form.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide experienced and caring representation in family law matters to every client.

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Domestic violence-true or false?

Domestic violence cases are tragic.  Just as tragic is for someone who did nothing wrong to defend against false accusations of domestic violence.  False accusations of domestic violence are made by moms against dads and by dads against moms who feel that the other parent should be kept away from the children.  False accusations of domestic violence are made to get an advantage in divorce by trying to prejudice the judge against the other party.  False accusations of domestic violence are made by foreign spouses in a divorce to petition for a green card.  A domestic violence restraining order impacts one’s relationship with children, freedom of movement, and even employment opportunities. 
One would think that it would take more for a court to make a restraining order than just one word against the other. The law makes it very clear that domestic violence is not acceptable in our society and the courts take a domestic violence case very seriously.   The burden of proof in a domestic violence case in family court is very low.  Courts recognize that domestic violence occurs in the home with nobody else present except the people involved.  This is why a domestic violence case often comes down to who the judge believes.

When people are about to divorce, sometimes the situation gets adversarial even before court. If you believe that your spouse is about to make false accusations of domestic violence, there are things you can do to protect yourself.  There are warning signs to look for.  Vindictive spouses make plans.  Watch for your spouse looking through your computer, email, cell phone, business records, financial documents, clothing, personal belongings.  A red flag is when you find missing items either among your documents or personal things.  Make sure your spouse does not have access to your computer, your cell phone, and your documents.  Get all important documents and valuables out of the house.  Smaller items, such as passports, birth certificates, and jewelry can be stored in a safe deposit box.  Watch for recording devices in the home.  The recording devices may be hidden, so check in places where a recording device can be put without you seeing it.

Another strategy is to start an argument or to attack you.  No matter what happens in the home and no matter how strained the situation may be, do not get involved in an argument.  Cut off communication or keep it to a minimum.  If you are in a financial position to move out, look into getting another place to live.  However, before you move out, secure a temporary child custody and visitation order.  If you are dealing with a vindictive or an emotionally unstable spouse or if you are a defendant in a domestic violence case, I encourage you to contact a San Jose divorce lawyer.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide experienced and caring representation in family law matters to every client. 

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How to survive divorce the right way

Surviving divorce the right way means the difference between a good outcome and years of being stuck in the system with no end in sight.  Here are a few tips on how to survive divorce the right way. 

(1). Understand your goals.  The direction your divorce will take and how much it will cost depends on you and your goals.  You control where your case goes and the cost of your case.  Think about what kind of a person you are and what matters to you.  Write down your goals and discuss them with the lawyer at the first meeting. 

(2). The first meeting with a divorce lawyer.  Many lawyers can do the job.  At the same time, your lawyer must be a person you trust because you will be sharing sensitive information about yourself. Comfort level will be important.  Start your research early. First, look up the lawyer on the California State Bar website.  Next, read the lawyer’s website. You will get a feel of what this person is like from the first thing this person talks about. If you look at online reviews, be objective and keep in mind that they are not always reliable.  Pay attention to how easy it is to set up an appointment with the lawyer and to communicate with the office.  During your first meeting, discuss your goals and listen to how the lawyer offers to solve your problem.  Getting a second opinion is a good idea.  You will have to pay for the time of lawyer 2 (and lawyer 3), but the cost is justified to make sure you are making the right choice.

(3). Ask lots of questions.  If you don’t understand something, ask the same question as many times as you need.  Communication is important for working together and achieving a successful outcome.

(4). Use experts only when needed.  Experts are costly.  The cost of every action should always be weighed against the potential benefit.

(5). Don’t change lawyers unless you have to.  Sometimes people just can’t work together.  If you change lawyers, do so for a good reason.  Keep in mind, however, that changing lawyers ends up costing you more because your new lawyer has to review the case.  If you change lawyers too often, a reputable lawyer may not want to take your case.  The judge may also not look at it favorably.

(6). Keep emotions under control.  Emotions will get their way.  Seek a safe place to talk about how you feel. You can talk to your divorce lawyer about how you feel too, but don’t let how you feel get in the way of your decision-making ability.  Make decisions when you are ready.  Bring a support person to meetings with your lawyer if you need to.

(7). Follow advice.  You hired your San Jose divorce lawyer for a very good reason.  Hopefully, you discussed your goal with your lawyer on day 1 and got a realistic assessment.  Part of the job is telling you things you may not agree with.  If your lawyer gives you advice, you should follow it, even if you may not agree.  Following advice will also help you do things right from the start.  Do what your lawyer tells you right from the start because that is when your case is likely to be determined.

(8). Consider reasonable settlement offers.  Litigation is expensive and the outcome is uncertain.  Your divorce lawyer doesn’t control the outcome.  When we go to court, we place our lives in the hands of a third party.  Consider all reasonable settlement offers.   A reasonable settlement means that you are in control of your life.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide experienced and caring representation in family law matters to every client.

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Why you must act to Reduce Spousal Support

Spousal support is a thorny issue in divorce for both the payor and the recipient.  While nowadays few divorces involve spousal support, there are divorces that do.  If you are paying spousal support, this may be the largest financial obligation you will incur in life.  Even reducing your monthly payment by a seemingly small amount can lead to significant savings over the years.  A $200 reduction per month translates to $24,000 in savings over 10 years.  You must act to reduce, and, possibly, eliminate spousal support because the court will not reduce your payment if you don’t do anything about it.

Whether it has been 1 year or 10 years since your divorce, the supported spouse must make reasonable efforts to become self-supporting.  In marriages that lasted 10 years or longer, the law requires your spouse to become self-supporting as soon as reasonably possible.  What is reasonable time depends on the facts of the case.  If you are paying spousal support, it is your job to bring the case to court.  This is why it is important to join forces with a San Jose divorce lawyer who knows how to deal with this issue.

The first step would be to look at what was done in the case and to review the judgment: what your judgment says about your marital standard of living, whether the court gave your former spouse a Gavron warning, and whether you can modify support according to your judgment terms.  Family Code 4330(b) provides that, when making an order for spousal support, the court may advise the payee that he/she should make reasonable efforts to assist in providing for his/her support needs. This is a Gavron warning.  I will discuss the Gavron case in a future blog entry.  If a Gavron warning was not given, then you should ask the court to do so.

If a vocational exam was not done, it is time to do one.  Ask the court to order your former spouse to meet with a vocational counselor who would assess his/her skills and employment opportunities.  A vocation exam would come in very handy if your former spouse complains about a disability.  Someone who is older or who had an injury, for example, would not lift heavy stuff, but could do clerical work.  A vocational counselor would educate the judge about the jobs that your former spouse can do that are consistent with his/her skills, education, prior work history, and current abilities.  A vocational counselor would also survey the job market and educate the judge about the jobs that are available to your spouse.
​Another common issue that comes up in the Bay Area is that a supported spouse does not speak English well enough to work in a job that is consistent with his/her abilities.  A vocational counselor would educate the judge about what your former spouse can and should do right now to learn English and to get a job.  While the judge cannot force your former spouse to work or to follow recommendations, the judge can impute income to your former spouse based on evidence of ability and opportunity to work a vocational counselor would present.

​Contrary to what you may have heard or read, spousal support is meant to end.  An option that spousal support payors may want to look into is a lump-sum buyout.  However, there are many nuances that must be taken into account when negotiating a buy-out sum with your former spouse. Whether you have been paying spousal support for 1 year or 10 years, I encourage you to contact a San Jose divorce lawyer to set up a consultation to learn about your options.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer.  My goal is to provide experienced and caring representation in family law matters to every client.

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H4 Visa and Divorce

As part of helping clients with divorce, inevitably, immigration questions come up.  The Bay Area has become a home to people from all over the world.  As a San Jose divorce lawyer, I have learned that it is important for me to understand the various immigration challenges that my clients may face if divorce happens. 
Professionals from abroad bring their spouses and children.  You are given an H-4 dependent/spouse visa when your spouse has a work visa–H1B.  An H4 visa allows you to stay in the U.S. with your spouse.  If you hold an H-4 visa and you are going through divorce, your authorization to stay in the U.S. on an H-4 visa ends when your divorce is finalized.  You must request a change of status with USCIS, if you are eligible, before your divorce is finalized.  If you are an H4 visa holder going through a divorce and you wish to remain in the U.S., I encourage you to contact a San Jose divorce and immigration lawyer early in the divorce process to learn your options.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer.  My goal is to provide experienced and caring representation in family law matters to every client.

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Divorce and Conditional Residence

Many immigrants lose their green cards because they forget to petition USCIS to remove conditions on their residence.  If you married a U.S. citizen and, at the time you got your green card, your marriage was less than 2 years old, you are given a conditional green card.  What this means is that there is an additional step you must take to convince USCIS that the marriage is in good faith before you get a 10-year green card.  USCIS puts a “testing period” on marriages between U.S. citizens and foreign nationals that are less than 2 years old to make sure that the spouses did not enter into the marriage just for the immigration benefit.  Does this 2-year rule prevent foreign nationals from marrying U.S. citizens just to get a green card?  No.  While both foreign nationals and U.S. citizens do get away with entering into a marriage that is not real, USCIS tries to prevent this from happening the best way possible.
A conditional green card based on marriage to a U.S. citizen is given for 2 years.  Within 90 days before your conditional green card expires, you and your US citizen spouse must file a petition with USCIS to remove conditions on your residence.  You must present evidence that you and your U.S. citizen spouse are still living together and that you share a life together.  After USCIS removes conditions on your residence, you receive a 10-year green card.  USCIS will put you in deportation proceedings if you do not file a timely petition to remove conditions absent a compelling reason.  What happens if you and your U.S. citizen spouse divorce during the 2-year conditional green card period?  If you are headed for divorce, your U.S. citizen spouse probably will not sign your petition to remove conditions.  You must return to your home country or explore options to remain in the U.S.   If you decide to remain in the U.S., you can file a petition to remove conditions on your own, without the participation of your U.S. citizen spouse. If this is your situation, I encourage you to consult with a San Jose divorce and immigration lawyer about your options.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer.  My goal is to provide experienced and caring representation in family law matters to every client. 

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The Toll of High Conflict Divorce

The emotional and financial cost of litigation is high.  This is why advice of a divorce lawyer is important because you will be informed about the law that applies to your situation and what you can and cannot get.  Sound advice is important when you are making a decision to proceed to litigation or to reach a settlement.
People’s anger towards their spouse and often their spouse’s counsel make it hard to make rational decisions.  Going through a divorce is not easy and emotions can cloud judgment.  A divorce lawyer does not just give you legal advice and handle your case in court.  A divorce lawyer is also a counselor when it comes to overcoming your feelings and making decisions that you will live with for the rest of your life.  Rational decision making can mean the difference between moving on with your life with minimal financial impact and fighting protracted court battles for years to come.  Minimizing the emotional and financial toll of divorce can be achieved by understanding the law and what you can and can’t do in the court system.  Taking the right action early on and not letting your emotions get in the way means not only resolving the matter expeditiously, but doing all the right things to minimize the conflicts and the financial strain.  If you believe that a conflict will arise in your divorce, I encourage you to consult with a San Jose divorce lawyer.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer.  My goal is to provide experienced and caring representation in family law matters to every client.

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