September 2011 Archives

Alimony, Child Support, Property Division, a Financial Trifecta in San Diego Divorces

Massachusetts has passed a landmark law regarding alimony payments, The Wall Street Journal reports. The new law aims to end lifetime payments, particularly in retirement or once a former spouse finds a new partner.

Divorcing couples should know and understand the distinct differences between child support and alimony or spousal support in San Diego. Spousal support is generally treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer. 1064586_time_is_money_2.jpg

Child support may be more collectible than spousal support -- i.e. the court system may be more likely to enforce the court's orders. And, of course, as we reported this summer on our San Diego Divorce Attorneys Blog, cohabitation or remarriage generally does not impact child support payments in San Diego or elsewhere in California. That is not necessarily true of alimony or spousal support.

Spousal support can be awarded on a temporary or permanent basis. Temporary spousal support usually covers the period of time between separation and when a divorce ends. Permanent alimony is typically awarded based on the length of the marriage. A short-term marriage in California, one lasting less than 10 years, may result in an alimony award lasting up to half the length of the marriage. In long-term marriages, judges are given great discretion and payments may be awarded indefinitely.

Together with the initial property awarded to each spouse, the trifecta will go a long way toward determining your future quality of life.

As the Wall Street Journal reported, the recession has brought the contentious issue of long-term alimony to a boiling point. Statistics show unemployment has hit males the hardest. And, as the Baby Boomer generation hits the gates to retirement, many former husbands are looking to reduce or eliminate payments. The Tennessee Supreme Court recently ruled lifetime alimony was inappropriate if a woman was in good health, had a stable job and had received considerable assets during a division of property. And Florida recently set a higher bar for permanent spousal support awards.

The new law in Massachusetts takes effect next March. Those paying lifetime alimony can apply for modifications beginning in 2013. For women counting on these payments in retirement, a reversal could be financially devastating. The New York Times reports the Massachusetts law calls for alimony for up to half the length of a marriage lasting less than five years. For long-term marriages -- those lasting 15 to 20 years -- payments could last for up to 80 percent of the length of the marriage.

Your attorney needs to work toward a divorce agreement that adequately provides in all three areas: property division, spousal support and child support. The pros and cons of each award must be weighed with the client's financial future in mind.

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Social Networking and Divorce in San Diego

Shh. Big Brother is Watching!

Do you use Facebook, Twitter or other social media? If so, and you have filed for divorce in San Diego, you need to be aware that your posts, tweets and pictures may end up being entered as evidence in a court of law. 1280072_keyboard.jpg

San Diego divorce lawyers are seeing many more cases involving social media. In just a few short years, this technology has become so pervasive that a California divorce lawyer would be remiss for not seeing what public information is available about a client's former spouse online. Whether as a source of information or evidence in a pending family law action, or the actual impetus for the divorce itself, social media has arrived on the scene in a big way. Consider the following:

  • In March, the U.K's Guardian reported that social networking sites are becoming a primary source of evidence in divorce proceedings. The article even blames Facebook for connecting old flames and causing marital problems.
  • A survey last year by the American Academy of Matrimonial Lawyers found that 4 of 5 lawyers had seen an increase in divorce cases involving social media evidence.
  • This month's Men's Health features an article detailing Twitter relationships a divorcing party participates in with multiple partners.

Although the Wall Street Journal reports the notion that 1 in 5 divorces are caused by Facebook is a fallacy, there is no doubt social media is a contributing cause in a substantial number of divorces. More and more attorneys are asking to see a spouse's Facebook page as a matter of course.

There have been sociological studies into the issue of why people behave the way they do on social networking sites. These studies reveal that people treat such social technology the way they would a close friend -- and that they confide information in a very public way -- information that is often best left unsaid, particularly if you are in the middle of a contentious divorce or child custody proceeding. For example:

  • Posting wild and crazy pictures of you while on vacation is not a good idea. You should simply refrain from posting such pictures.
  • Tweeting about job woes or problems with the kids is a bad idea. It is best to keep this information confidential.
  • Posting about your alcohol or drug use (especially pictures) is a very, very bad idea. Do not do this under any circumstances.

A good rule of thumb is to not post anything to a social media site that you would want a judge to see. Otherwise, you may end up in the very uncomfortable position of explaining your posts, tweets or pictures to a judge in a court of law.

One more thing to consider is reviewing your friends as well as your privacy settings on Facebook and any other social media sites that you use. Your friends may still be talking to your ex, or to your ex's friends, allowing your ex, and his or her attorney, full access to all of the information you share on your social media sites. An increasing body of evidence continues to suggest this is advice best followed even if you are not in the midst of a divorce.

Your attorney will warn you about social media sites. Whether you heed the warning is up to you. There are few things can torpedo your case like your own words or pictures posted on a social media site for all to see.

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Support Stipulations

September 15, 2011

The Associate Press is reporting that Los Angeles Dodgers owner Frank McCourt will keep paying $225,000 in temporary spousal support to his ex-wife, Jamie McCourt, over the next couple of months, but that money once used toward the mortgages of six luxurious homes will come from a $1.1 million escrow account funded by the sale of one of their other homes that was located near the Playboy Mansion.

When child and spousal support are at issue in a San Diego divorce, the issues can be resolved two way; either by agreement of the parties, or the court will make an order after having a hearing on the issue.

When parties reach a support agreement outside of a court hearing, either on their own or through their attorneys, the agreement is called a "Stipulation." To become effective, the terms of the Stipulation must be written down and filed with the court.

When an agreement regarding child support is reached, the written Stipulation that is filed with the court is required by the San Diego County Superior Court Rules to contain the following child support acknowledgments:

1. Each party is fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the child involved;
4. The needs of the child will be adequately met by the stipulated amount of support; and
5. The right to support has not been assigned to the county pursuant to section 11477 of the Welfare and Institutions Code and no public assistance application is pending.

Further, in San Diego County, all written stipulations for the payment of child support must also include the following mandatory language:

"The parties declare all of the following:
1. They are fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the children involved;
4. The needs of the children will be adequately met by the stipulated amount; and
5. The right to support has not been assigned to any county pursuant to section 11477 of the Welfare and Institutions Code and/or Family Code section 17404, and no public assistance application is pending."

In addition to the mandatory acknowledgements and language, the following forms are required to be included with all child support orders (which include Stipulations):

1. A Child Support Case Registry Form must be properly filled out and included with all child support orders issued or modified pursuant to Family Code section 4014; and
2. A Notice of Rights and Responsibilities must be attached to all orders and judgments which include provisions for child support pursuant to Family Code sections 4062 and 4063.

The experienced San Diego Family Law Attorneys at the Law Offices of Nancy J. Bickford are very familiar with all of the requirements of the California Family Code and the San Diego Country Superior Court Rules that must be followed whenever an agreement is reached to make sure the terms of the agreement are enforceable.

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In cases in which a stipulation cannot be reached, we will vigorously argue your case at a hearing or trial.

If you are considering a divorce, the most important first step is to consult with an experienced San Diego Family Law Attorney. Call 858-793-8884 in Del Mar, Carmel Valley, North County, La Jolla or San Diego to schedule an appointment with Nancy J. Bickford.

Revisiting Move-Aways

September 1, 2011

In a previous San Diego Divorce Attorney blog post, I discussed the factors the court looks at when a party is requesting to move with the children.

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In two recent San Diego divorce cases, the court of appeal determined that the trial court misapplied the applicable legal standard when denying move away requests.

In both Mark T. v. Jamie Z. and F.T. v. L.J., the trial court was reversed for failing to assume that the move by the parent requesting the move will take place, and then under those circumstances, make a decision about with whom and under what circumstances the child should live. Instead, in both cases, the court denied the move-away and made its orders on the assumption that if the move was denied, the custodial parent would not move.

In Mark T. v. Jamie Z., Mother who had primary physical custody of Child, requested to move to Minnesota with the Child because she was unemployed and could not find work in San Diego, despite receiving child support and emergency state aid she was borrowing money from relatives to make ends meet, and she had family in Minnesota with whom she could live and provide child care assistance, the cost of living was lower and she planned to return to school part-time and had an internship in Minnesota. Although the FCS mediator recommended that Mother be allowed to move, the child psychologist believed the move should not be permitted because it was in the Child's best interest not to remove him from a loving and capable Father. The psychologist's recommendation assumed Mother would remain the primary care-taker with Father's time increasing from 30% to 50% when the Child turned 5 years old. The court denied the move-away and adopted the psychologist's recommendations, assuming that if the move-away was denied, that Mother would remain in San Diego with the child. The court of appeal reversed holding that the court misapplied the legal standard and avoided the ultimate question - what custody arrangement would be in the Child's best interests, assuming Mother moved. The court also did not base its decision on all of the move-away factors and the one's that were used, such as finding the move "suspect", were without a basis for the findings.

In F.T. v. L.J., Father, who had primary custody of Child, requested to move Washington state with the Child because he was marrying a Washington state resident. Father originally obtained primary custody after Mother abused the Child, and Mother was convicted for battery against the Child. Mother had supervised visitation, which was later modified to unsupervised visitation. Both FCS and the psychologist recommended against the move. FCS proposed alternative child sharing schedules depending on whether Father remained in San Diego or moved. The court denied the move-away, finding that the move was not in the Child's best interest and made an order assuming that Father would remain in San Diego. The Court of Appeal reversed holding that the court misapplied the legal standard, did not treat the Father's plan to move as serious, erroneously required Father to show the move was necessary, only considered impact on Child's relationship with Mother instead of all the move-away factors and failed to apply Family Code Section 3044's rebuttable presumption that Mother should not be awarded custody because of her criminal conviction for battery of the Child.

The court must apply all of the move-away factors, including:
• Reason for the move;
• Whether the move is to frustrate the other parent's contact;
• The child's interest in stability and continuity;
• Distance of the move;
• Age of the children;
• Child's relationship with both parents;
• Current child sharing.
• Child's Existing contact with both parents;
• The relationship between the parents;
• The wishes of the children if mature enough;
• Child's community ties;
• Child's health and educational needs;
• Child's circle of friends; and
• Child's sports/academic activities.
and make orders based on the assumption that the party requesting the move will move regardless of the court's decision. The court can also make conditional orders, stating what the parenting plan will be effective upon the party actually making the move.

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