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Kenneth Thomas Demmerle
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Kenneth Demmerle’s Answers

9 total

  • In a California divorce are the asset values for Fl-160 based on the asset values as of the date of the separation?

    I am trying to make sure the account values listed are correct

    Kenneth’s Answer

    California Family Code Section 2552 generally requires that for purposes of dividing community property that assets and debts be valued "as near as practicable to the time of trial". If you are settling a case this usually amounts to as close as possible to the date the case is settled.

    There are a few exceptions to this rule, pursuant to which a court upon the filing of a proper motion would allow an alternative valuation date.

    As an example, if there is a community business in which one spouse actively participates and can have a significant impact on the the value of the business most courts would value that business as of the date of separation. The logic is that if the "in spouse" put post separation efforts into the business, those efforts would result in separate and not community property. This also protects against the "in spouse" driving the business into the ground after separation to lower the value at which it is awarded to them.

    It should also be noted that assets that generally will not fluctuate in value except for post separation deposits or withdrawals, such as a checking account, are in all actuality going to be valued as of the parties' date of separation. This is because presumably post separation deposits would be separate property contributions and a party expending funds from an account post separation would be depleting community property and should be charged with it.

    This is different than an investment account which might significantly fluctuate in value from the parties separation until the date of trial. As to those types of assets you are back to the general rule that they are valued as close as possible to trial or separation.

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  • How does infidelity affect child custody in divorce?

    My wife cheated on me and maintained a questionable relationship with her 'friend.' What are my chances for full legal and physical custody after the divorce? I also do not want to pay alimony. I want full custody because I'm more stable. I mak...

    Kenneth’s Answer

    California is referred to as a “no fault” state with respect to divorces. In other words, generally speaking, judges do not want to hear testimony concerning infidelity.

    However, with respect to custody, courts are sensitive to introducing and involving children with a new boyfriend or girlfriend too soon after a party separates from a child’s other parent.

    Furthermore, if someone going through a divorce is spending significant time with a third party at the expense of spending time with the children, such conduct could detrimentally affect them in a custody dispute.

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  • What financial paperwork (bills) do I need to retain & for how far back, in order to receive a fair divorce settlement?

    I'm the main provider for my household. My sponse has been on again off again working our entire life together (mostly off again). He recently was hurt @ work and may receive a large settlement. What type of finanical paperwork do I need to ret...

    Kenneth’s Answer

    Broadly speaking, in divorce, there are essentially four (4) potential financial issues:

    1) Child support,
    2) Spousal support,
    3) Division of property,
    4) Attorney’s fees.

    In order to initially evaluate issues concerning you and your spouse’s income as it relates to child support, spousal support and the potential for one party to pay for or reimburse the other for attorney’s fees, it is a good idea to bring your last 1 to 3 years’ of income tax returns. As to the division of property, a list of all of you and your spouse’s assets and debts as well as their approximate values would be beneficial. These documents should at least get you through an initial consultation with an attorney who can then ask for additional detailed information as needed.

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  • Daughter engaged to older wealthy man requiring a prenuptial agreement

    My 25 yr. old daughter is engaged to a very nice guy who is quite a bit older than she. He is asking her to sign a prenup due to his company being family owned. He is agreeable to giving her a life insurance plan in lieu of her having an interes...

    Kenneth’s Answer

    You should absolutely have an attorney review the agreement and advise your daughter. I am certain she is not being benefited by the agreement and she needs to understand the potentially significant financial rights she is giving up by signing it. I have never recommended that someone in your daughter's situation sign this type of agreement. At a minimum, she needs to be understand what she is signing.

    Generally life insurance provisions in a premarital agreement only apply as long as the parties are still living together and/or are married. She should consider negotiating through her attorney for additional financial benefits in the event of a divorce.

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  • Should my ex- husband have a seperate bed and room for my 9 year old son?

    My 9 year old son either sleeps on a sofa or in bed with ex-husband in studio appartment with him and his wife. Does he need a separate room and bed?

    Kenneth’s Answer

    In a perfect world with sufficient income or assets your ex-husband would provide a separate room for your son. If he cannot afford it, I think most judges would not insist on it.

    A separate bed for a 9 year old is another issue. I think most psychologists and hence most judges would agree that it is best for a chlld of that age to not regularly sleep in the same bed as their father. I have seen a number of cases in which the court has conditioned a parent's custodial time on providing a separate bed; even if it means your ex-husband and his wife sleeping on the floor when they have your son.

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  • How do i file for a annullment?

    i got married this weekend but due to differences of both parties we want to file for a anullmet.

    Kenneth’s Answer

    It is relatively easy to file for an anullment. However, getting a court to annul a marriage can be tricky even if it is a very short marriage. Without more details a husband and wife having "differences" is not enough.

    Essentially for an anullment a party has to show that the marriage was incestuous or bigamous, that a party was too young to marry, was married to another person at the time of the marriage in question, was of unsound mind, did not have the capacity to understand that they were getting married or that they were induced to get married as a direct result of fraud or duress.

    Good luck.

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  • I have never had any type of custody or child support agreement through the courts for 15 years

    i have a ttl of 3 kids with the other parent, 20,17 and 15 for the past 15 years we have never had a custody or child supt via court order i have always seen them every other weekend and paid 700 a mnth now that my son is going to be 18 she has fi...

    Kenneth’s Answer

    • Selected as best answer

    Just because she is asking for sole custody does not mean that the court will order it. It sounds like you have been an active father and involved in your childrens lives. Assuming no other facts, the court should order that your contact with your daughter continues on the same schedule you have been following.

    For the court to order anything other than joint legal custody, your ex will essentially have to show that you have a poor track record of decision making for the children.

    As to child support, you should argue that your ex is capable of working. It would be best to get the court to appoint a vocartional expert to evaluate her skills and to testify as to jobs that are available to her and what she can earn. However, this can get expensive. A cheaper alternative would be to show the court a series of recent job postings from the internet or newspaper for jobs she is capable of doing. If the court imputes and income to her, it will result in you paying less child support.

    Please understand that this is advice based on very limited information on your case. I am also makingf a number of assumptions which could be wrong. The best thing you can do is to consult further with a family law specialist.

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  • In California will they drop a protective order if a protected person served the papers?

    In California will they drop a protective order if a protected person served the papers for the temporary restraining order and court hearing? It is stated in bold print on page 2 "not you or anyone else to be protected"-must personally give (...

    Kenneth’s Answer

    While it is possible that the court will dismiss the matter for defective service, if the allegations of domestic violence have any substance most judges will continue the matter to permit the petitoner to effectuate proper service.

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