Skip to main content
Gary D Sparks

Gary Sparks’s Answers

145 total

  • What are the legal repercussions to custodial parent committing perjury in CA?

    It is believed that the custodial (mother) committed perjury on an income affidavit.

    Gary’s Answer

    In the counties in which I practice, perjury is something investigated by the D.A.'s office and prosecuted if there is enough evidence to convict beyond a reasonable doubt. The perjury in question must also be of a "material fact" and not some minor or incidental fact.

    Here's the problem... it's a commonly held belief that "everyone lies" in family law. That doesn't make it right or okay to do, but it does taint whether a D.A. will seriously investigate and/or prosecute perjury arising out of a family law action.

    Realistically, your better option is to do the investigating yourself (using a process called "discovery"), and then present the Court with facts that the opposing party is lying. If you can establish this by a preponderance of the evidence, then the opposing party loses all credibility, and may even have to pay sanctions (fines and/or attorney fees), or be barred from presenting some evidence in the case.

    See question 
  • US citizen medical doctor married in Japan to Japanese citizen with no pre-nuptial contract. Where should I divorce her?

    Hello, I am us citizen and married a Japanese citizen in Nov 2010 in Japan. Our marriage is obviously recognized by US authorities since she has received a temporary green card in May 2012. Now seeking divorce due to her untreated mental disease ...

    Gary’s Answer

    If you and your wife resided here in the United States (I am presuming Vacaville given the info tagged to your post), and your child was born here, then you could file for divorce here.

    You have two important issues to deal with (among others): first, you must determine how to properly serve her under Japanese law. For foreign service to be effective in a California divorce case, the Petition and Summons for divorce must be legally served according to the law of the country in which the other party resides.

    Secondly, you indicated you have a newborn child. If the child was born here and resided here until your wife moved, and it has been less than six months since she moved, then the Court in California can take jurisdiction over the child custody issues because California will be the child's "home state." The problem, though, may involve international law. I am uncertain whether Japanese law will recognize child custody jurisdiction in California as opposed to Japan.

    There are international treaties that govern these international custody issues (e.g. the Hague Convention, of which I do not believe Japan is a signatory); you should IMMEDIATELY consult with an attorney who is knowledgeable in those issues and can advise you on how to proceed. Depending on the timeframe of how things occurred in your case, you may find you need to move very quickly. Even when there are treaties involved, the international issues can be quite complex... you may remember the case of David Goldman and his son, Sean, who were involved in a lengthy battle involving New Jersey courts and the courts in Brazil.

    If you are interested, I can refer you to a good attorney located in Contra Costa County who handles international custody issues.

    Best of luck to you and your child.

    See question 
  • I have been divorced for 6 months and represented myself pro per. married for 20 years... How long do I have to pay alimony?

    I live in california.. i had a simple divorce case... 2 kids, no mortgage or car payments or retirement. I represented myself pro per in my case. I was married for 20 years. I do not see an end date to pay alimony in my final judgement. I thought ...

    Gary’s Answer

    Family Code Section 4320 only specifies that spousal support should presumably be paid for 1/2 the length of a marriage of less than 10 years. In a marriage of 20 years, the support obligation is almost always indefinite.

    Remember that when it comes to long-term, post-Judgment support, there are always 2 primary questions: (1) How much do I have to pay, and (2) For how long do I have to pay?

    If your Ex is now working nearly full-time, then you have a change of circumstances that should allow you to file a motion (now called a "Request for Order", or "RFO") asking the Court to modify your support payments.

    Depending on how much your Ex now earns, you may find that your support obligation could be reduced significantly. The Court may even set your case for what is called a "long cause" or "evidentiary" hearing (which is essentially a trial on the issue). At that time, the Court will not use DissoMaster to determine the amount of your support obligation, but will instead analyze your Ex's needs and your ability to pay under the factors specified in Section 4320. DissoMaster is really not appropriate nor intended as the method for determining long-term support; all it does is re-distribute income arbitrarily without concern for the 4320 factors.

    Even if the Court dramatically reduces your spousal support payment (or even makes it $0/month), the next question is the "how long" of support. In a long-term marriage, the Court will almost always keep jurisdiction open for either party to modify support again should circumstances change down the road. But this may or may not apply in your circumstance, depending on the facts in your case and the terms that actually appear in your Judgment.

    To be sure of your options, you should really at least consult with a family law attorney who can review the Judgment and the financial issues with you and then advise you on your best plan for moving forward.

    See question 
  • I am filling for divorce in California but my wife lives in Texas can I have someone from that state deliver for me ?

    I have been living in calif for 3 years, what form or proof of service do I use. our ten year anniversary is Jan 31 2004. HELP !

    Gary’s Answer

    Yes you can absolutely have her personally served in Texas with California divorce papers, but you need to make sure you follow the rules of service correctly. There is a Proof of Service-Summons form you have signed and completed by the process server and then file here in CA.

    See question 
  • Re:QDRO

    I got divorced about a year ago and at that time the 40I(k) was divided by the court with set dates stating start date and end date. I had transferred the amount allocated to me under a separate account choosing to stay with Fidelity. I recently r...

    Gary’s Answer

    Not enough information here. Whose 401K? How did the transfer actually occur (usually requires a QDRO in addition to your Judgment)? I agree, it sounds like one may have already been done. You should consult with a family law attorney who can look at your documents and then best advise you.

    See question 
  • Do I still need to pay any child support if I my income changed but I never informed other party?

    I worked in a big tech company and was laid off and got 4months severance package in 2012. I got another job and started next day after I laid off. I got 4 months salary which were $24,000 each month for 4 months as I was getting paid by both comp...

    Gary’s Answer

    • Selected as best answer

    Unless you were married and not divorced yet (in which case a fiduciary duty to disclose applied), or your support order included notification requirements or other provisions regarding change of jobs or income, your ex probably won't get anything. Under California law, the Court cannot retroactively modify child support for any period prior to the filing of a motion to modify.

    See question 
  • A father is being denied the right to see his daughter. The father is in California and the mother took the child back to India.

    Two Indian born people, moved to New York, met, married, and had a child. After one year the mother returned to India, took the child with her, and has not allowed the father to have contact with his child for three years. He has made repeated at...

    Gary’s Answer

    California law is not going to help this father other than with the very basics of a divorce. The child was never here and there appears to be no jurisdiction in this state regarding custody issues. I can't advise on NY law, but Father may ultimately need to contact a lawyer in India to help with this matter.

    Father should have consulted with legal counsel immediately at the time Mother took the child. Waiting this long complicates the matter tremendously.

    See question 
  • Am I eligible for child support if I'm on disability while pregnant?

    I have a 6 year old and am four month pregnant from another father. I have 50/50 week on week off visitation, with zero child support in place because we made the same amount with same visitation. My dr put me on disability at 4 months for bed res...

    Gary’s Answer

    California guideline support determines child support based on three major (and a number of other minor) factors -- your income, the father's income, and the percentage of time your child spends with each of you (called timeshare).

    If your income changes, or his income changes, or the timeshare changes, guideline child support can be modified to reflect the change in circumstances. If your income has decreased through no fault of your own, then yes, child support could very well increase.

    You could contact your local Department of Child Support Services (DCSS) office, but they typically have a large backlog of cases and generally do not act very quickly. You will likely either need to obtain the assistance of the local family law facilitator at your local courthouse, or consult with a family law attorney who can walk you through how to quickly file a motion to modify support and the required supplemental paperwork (such as Income & Expense Declaration).

    One more note: once your new baby is born, you may be entitled to a "hardship" (or partial hardship) credit on the guideline support calculation, because you now also have the legal obligation to support another child, which means you have less income available for the support of your first child. This might also lead to a slight modification of child support.

    See question 
  • Is a verbal order by the judge constitute a court order if it's not on paper?

    The judge told me in court to return my son to his previous school; will I be in contempt of court for not doing it if it was told to me verbally and not on a written order? I can't enroll my son back because I moved 30 miles away. His father spok...

    Gary’s Answer

    I don't know about Northridge, but here in my area if the family court made an order and you were present, the order is generally effective the moment it is made. More importantly, by not following the Court's order, you may hurt yourself at the upcoming custody hearing. One of the factors that judges use in evaluating custody/visitation of children is a parent's compliance with previous court orders. A parent who refuses to follow a direct order regarding a school transfer is also possibly a parent who will not follow direct orders regarding custodial schedules, holidays, medical procedures, etc.

    You should immediately consult with a family law attorney in your area who is familiar with your local court and the judges and can properly advise you on what your next step should be.

    See question 
  • Can his attorney be served?

    I am going through the custody process with my daughter's father. We have been back and forth to court many times and I am now submitting paperwork to return once again. Her father still has the same attorney from the last time. Can I serve the...

    Gary’s Answer

    There is another option. When an attorney has NOT filed a Notice of Withdrawal, and therefore is still the "attorney of record," we will sometimes contact the attorney directly to ask whether s/he is authorized to accept service on his/her client's behalf. If the attorney confirms that s/he is authorized to accept service (and we receive confirmation in writing, such as an email, etc.), then we go ahead and serve the attorney instead of the party.

    The key is receiving written confirmation that the other party has authorized his/her attorney to accept post-Judgment service of process. I had a case several years ago where the party objected to service on her attorney, but we went through the above steps and first received written confirmation that we could serve the attorney. The court in that case found that we had properly perfected service by receiving confirmation from an attorney who was still the "attorney of record." No guarantee in your case, but sometimes common sense prevails.

    See question