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Matthew J. Rudy

Matthew J. Rudy

Matthew J. Rudy is the founding attorney of The Law Office of Matthew J. Rudy. A San Jose native, Matthew has been providing family law solutions throughout Santa Clara County and the greater Bay Area since his graduation from the Santa Clara University School of Law in 2007.

Posted by on in Divorce

In California, there is a legal action known as a summary dissolution. This is the dissolution of a marriage that has only been legal for five years or less. A joint petition for summary dissolution can be filed when either spouse meets the standard residency requirements and irreconcilable differences the marriage render the marriage irretrievably broken. A summary dissolution can also be filed when the marriage does not involve any children and the wife is not pregnant (Wikipedia).

Who Can File for Summary Dissolution?

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Posted by on in Divorce

Divorce is a situation that few people ever plan, budget or save for. It is also a significant disruption to everyday life. Housing, finances, family relations and friendships can be seriously affected by a divorce, however amicable. Deciding on the best way to handle the divorce goes along with the decision to pursue divorce at all.

Even people who would prefer not to divorce often come to believe they have no choice but to go through the process. Many people wish to avoid the expense and hassles of traditional divorce litigation but do not know how. Couples who think they agree on how to divide property and how to cooperate in the care of children may also think that they can save time and money with a low-cost "do-it-yourself" (DIY) divorce, with no lawyer involved.

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Posted by on in Child Support

Collecting unpaid child support is an on-going problem for many custodial parents. High unemployment and the national economic situation leads to more people than ever unable to meet their financial obligations including child support payments.

There are a growing number of individuals who have exhausted their unemployment benefits and cannot find work. Bankruptcy, while offering relief from a variety of consumer and medical debts, does not offer relief for a former spouse who is behind in support payments.

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Posted by on in Child Support

Establishing paternity, or determining a parent child relationship, is legally necessary in order to collect child support. If a child’s parents were not married to each other when the child was born, the law does not recognize the father unless paternity is legally established by a court order. Establishing paternity will give your child the same rights and benefits as children born to married parents. Unmarried parents can establish paternity by signing the voluntary Declaration of Paternity. This can be done in the hospital after the child is born. A Declaration of Paternity may also be signed by parents either before or after they leave the hospital (Wikipedia). The federal government provides a payment to the hospital for each Declaration of Paternity signed. The signed Declaration of Paternity has the effect of a legally binding Judgment of Paternity.

An acknowledged father is a biological father of a child born to unmarried parents, for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support. An unmarried man who impregnates a woman is often referred to as an alleged father until there has been a finding of paternity. An alleged or unwed father will be required to pay child support if a court determines or he acknowledges that he is the father; in addition, an alleged or unwed father has the right to visitation with his child and may seek custody (Babycenter.com).

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Posted by on in Spousal Support

Many people believe that if a couple lives together for a period of years and holds themselves out to the world as a married couple, then the couple will be considered to be “legally married.” While this may be true in certain states, California abolished these common law marriages over a hundred years ago. A common law marriage can never be created in California; however it will recognize common law marriages that were created in states which do recognize them.

Even though California does not allow for common law marriages, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances. In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.” To be given the status of a putative spouse, it is not enough to say that you simply believed you had a common law marriage. Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced). Not only that, but this good faith belief that you are married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status. Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership. A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that is required once the relationship is terminated. A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits (Wikipedia). The spouse who knew or should have known that the marriage was not valid will typically not be able to benefit from these provisions.

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Divorce can cause a range of emotions from anger to sadness to relief. Divorces can be both mentally draining and time consuming. As such, sometimes finances can be an afterthought. As things get hectic, it is a mistake to forget about your credit situation. Before we start going through the tips, here’s a bonus tip: pull your credit report. You will be using it a lot to prepare for your divorce

Below are some ways to protect your credit during a divorce as well as a brief analysis of California Family Code Section 2040 and the automatic restraining orders that take place to help protect your finances:

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Posted by on in Divorce

In late June, the Supreme Court of the United States (SCOTUS) ruled that the Defense of Marriage Act (DOMA) was unconstitutional, and that the benefits available to legally married heterosexual couples should be available to legally married gay couples. The 1996 federal law had defined the institution of marriage as a union between a man and a woman, thus denying federal benefits for gay couples whose marriages were recognized at the state level—like joint tax returns, Social Security, health insurance, pension protection, benefits for military couples, and immigration protections for couples from different countries.

The court invalidated DOMA in a 5-4 ruling. Justice Anthony Kennedy, who delivered the decisive vote along with the court’s four liberal justices, wrote the majority opinion stating that DOMA “violates basic due process and equal protection principles applicable to the Federal Government.”

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Relationships In America

relationships

Embed this infographic on your site!

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Tagged in: divorce
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Often, after a separation or divorce, a parent decides to move because he or she can no longer to afford to live in the same city, for a new job opportunity, or so that he or she can be closer to extended family for financial or emotional support. Whatever the reason, when a parent wants to move, difficult decisions have to be made regarding where the children will live and how the other parent will maintain a relationship with them.

Sometimes, divorced or separated parents can agree on where their children should reside and what the visitation arrangements will be. Many times, however, these situations are emotionally and logistically difficult, and parents cannot agree. It will then be up to a court to decide.

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Posted by on in Divorce

One of the most frequently cited family law statistics is that 50% of marriages end in divorce. No one gets married with the expectation of getting divorced. However, changes, including in the nature of the relationship between spouses, are inevitable and one or both spouses may ultimately come to the conclusion that a divorce is in the best interests of all involved. Below are some common signs of a failing marriage:

1. Decision making has become a dictatorship. There used to be a time when you and your partner would discuss the upcoming weekend plans, what to eat for dinner, the handling of work-related issues, etc. Now, you are making decisions without consideration from the other.

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Posted by on in Divorce

Financial problems are often a source of stress in marriages. Sometimes this stress can lead to divorce proceedings. A bankruptcy filing can be the most severe form of financial stress. It is not unusual for a bankruptcy filing and a divorce proceeding to occur at nearly the same time. There are ways for the parties to a simultaneous or near-simultaneous bankruptcy and divorce proceeding to ease this process.

Which should happen first, divorce or bankruptcy?

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A required step in the divorce process is preparing and exchanging preliminary financial disclosures. A judge will not grant a divorce without the completion of this step. Not filling out the forms or filling financial disclosures out incorrectly can cause problems for both parties.

California is a community property state, which means that with few exceptions everything acquired during marriage is community property. Community property includes asset, liabilities and pensions. Whenever a person wants to get divorced in California, the court requires that all issues that were created during the marital period also be resolved at time of divorce. This includes dividing the assets and the debts, resolving custody and support issues. California Family Code section 2104 requires the preparation of financial disclosures known as Preliminary Declarations of Disclosure detailing all assets comprising the marital estate, both separate property assets and community property assets.

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Summer is almost upon us, which means two things: school is out and summer vacations are in. And with summer, say goodbye to your daily routine and hello to possible chaos. This sentiment especially rings true if you have recently gone through a divorce and are adapting to new custody and visitation schedules.

Here are some helpful hints to ensure that you and your ex do not ruin these vacations for your children:

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Posted by on in Divorce

In recent years social media has become a way of life to the point that nothing is official until it is “Facebook official.” Updating Facebook statuses and tweeting has become part of the daily routine for many people. While these practices can make it easier than ever to remain in constant contact with friends and loved ones they can also have adverse effects. For example celebrity tweets have led to celebrity stalkers. By letting people know where you are and what you are doing all day, you are enabling people to break down your privacy. Not only have celebrities gotten in trouble for their social media, but normal people have been too. Many people have been fired from their jobs for calling in sick and then updating their Facebook and twitter saying they are playing hooky. Many aspects of people’s lives can be affected by social media; including their divorce and subsequent proceedings.

               Social media may not only be dangerous during a divorce, it can also affect your marriage. Oxford University psychologists found that using many different channels to communicate - Facebook, tweets, texts and instant messages - resulted in a drop in average relationship satisfaction. The findings suggest that the overuse of social media can be bad for a relationship in general. According the American Bar Association, “approximately 59% of all Internet users use at least one social networking service. Here in the U.S., Americans spend over 20% of their online time on social networks and blogs.” (ABA)

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Previously we provided statistics with regards to the prevalence of domestic violence. Today our focus is on the process for obtaining a domestic violence restraining order pursuant to California’s Domestic Violence Prevention Act (DVPA) as set forth in Family Code §6200, et seq.

A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with. Requirements for a domestic violence restraining include:

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Posted by on in Divorce

Same-sex marriage has become a much publicized issue in recent years. Pending the United States Supreme Court decision regarding the status of same-sex marriage in California same-sex couples in California may register as domestic partners with all of the same rights, at the state level, as spouses.

A California domestic partnership is “a legal relationship available to same-sex couples, and to certain opposite-sex couples in which at least one party is at least 18 years of age.” It affords the couple "the same rights, protections, and benefits, and... the same responsibilities, obligations, and duties under law..." as married spouses (legalinfo.ca.gov).

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Posted by on in Prenuptial Agreements
 

 

Given the prevalence of divorce, prenuptial agreements are an increasingly popular way for people to protect assets in the event of a divorce. Most people believe that only celebrities have reasons to have a prenuptial agreement. However, prenuptial agreements are made for anyone that has any assets that need protection in case of divorce. Some agreements also address estate planning issues, alimony, asset management during the marriage and responsibility for debt. Entering into the agreement at or near the time of engagement is highly recommended. In this blog, we will explain the basics of prenuptial agreements by looking at California Family Code Sections 1612 and 1615.

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Hague Convention on International Child Abduction

As globalization on both a personal and business level has increased the world has seemingly become smaller. Romantic relationships — and breakups — that cross national borders have become more common. Relationship breakdowns, often nasty for adults in the same locale, can be even more complicated when children and multiple government jurisdictions are involved. One of the worst outcomes of these breakups is the abduction of children. One parent decides to take the child back to the parent’s country of origin. To make things less complicated, the Hague Convention on International Child Abduction was created.

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Posted by on in Divorce

Internal Revenue Section Code 1041

With April 15th fast approaching, we, like many of you, are turning our attention to taxes. For couples contemplating a divorce or in the process of a divorce one of the most important tax provisions to be aware of is Internal Revenue Code section 1041 which addresses the transfer of property between spouses or former spouses. This section provides that any transfer of property from one spouse to another is a nontaxable event. This means that no deductible loss or taxable gain is declared on a qualifying transfer. This section applies to transfers during marriage as well as during divorce. Section 1041 was part of reforms intended to simplify the Internal Revenue Code.

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Posted by on in Grandparent’s Rights
 

During divorce custody disputes can occasionally become multi-generational with grandparents seeking visitation with, or even custody rights over, their grandchildren. In general, the Court’s preference to award custody to one or both parents is set forth in California Family Code § 3040(a)(1). However, the Court may award custody of a child or children to a non-parent in the event that the Court deems it inappropriate to award custody to either parent. This non-parent can be a grandparent, other relative, or even just a family friend. Family Code §§ 3101, 3103 and 3104 set forth the requirements for grandparent visitation in California.

Visitation

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