February 2012 Archives

How do I collect unpaid or back child support in San Diego?

How do I collect unpaid or back child support in San Diego?

Times are tough already between the economy and normal monthly expenses stacking up. The last thing a custodial parent needs is to worry about obtaining and collecting child support. Attorneys in the San Diego area can help you obtain and collect unpaid or back child support that is owed to you.

Why do I need a Child Support Order?

If you are the primary custodial parent, you have a right to child support to help with your monthly expenses. The non-custodial parent is just as responsible for providing for the child(ren) as you are. Having an oral agreement for child support with the non-custodial parent is not good enough. You need to obtain an order from the court for the child support agreement to be enforceable. Without a court order the non-custodial parent has no legal obligation to pay child support to you even if you have agreed to terms for child support payments. If the co-parent stops paying the amount of child support you informally agreed to, then you will have little recourse if he or she stops making payments and you will not be able to collect arrears for the months they did not pay or only partially paid.

How do I file for child support?

Obtaining a court order is easier than it sounds and the state's enforcement tools (discussed below) often provide incentive for the non-custodial parent to pay child support.

If you were not married to the child's parent at the time the child was conceived, you will have to first file a Petition to Establish a Parental Relationship ("Petition") to establish paternity. You will need to provide your attorney, and the court, whatever information you have about the other parent's whereabouts and your relationship with that person. The Petition also allows the court to make child support orders once paternity is established.

If you were married when the child was born, paternity is presumed unless the other parent challenges paternity. However, you will have to file an Order to Show Cause to obtain child support. The court will determine a guideline amount based on both parent's income, timeshare with the children, and various other factors.

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Proposition 8 and California Same-Sex Marriages

February 13, 2012

On Tuesday, February 7, 2012, the U.S. Ninth Circuit Court of Appeals ruled Proposition 8 unconstitutional. The voter-passed initiative banned gay marriage in the State of California. As a result, California's state constitution was amended to read; "only marriage between a man and a woman is valid or recognized in California." Activists argued that, by allowing gay marriage, California schools would be infiltrated with inappropriate material that undermined heterosexual marriage. Immediately, lawsuits were filed challenging the ban. There are many supporters on both sides of this issue and the Ninth Circuit's ruling is likely to be appealed to the United States Supreme Court. Anticipating this move, the Ninth Circuit stayed it's ruling. However, counties across the state are beginning to prepare for the anticipated influx of same-sex marriages that will most definitely ensue once the stay is lifted.

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Some of Proposition 8 supporters and opposition can agree that once the voters speak, their decisions should be honored. In the Federal District Court of the Northern District of California, Judge Vaughn R. Walker found that Proposition 8 violated the equal-protection rights of the same-sex couple who filed the lawsuit. Judge Walker and the Ninth Circuit agree that banning same-sex marriage is a violation of the 14th Amendment of the United States Constitution because it discriminates against a group of people. The voters of California have rejected same-sex marriage twice and twice they have been challenged in the courts.

Currently, a total of six states grant same-sex marriage licenses including: Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. The government of Washington D.C. also grants same-sex marriage licenses. In addition, Maryland recognizes same-sex marriages performed in other states, however it does not grant same-sex marriage licenses. On Tuesday February 8, 2012 the State of Washington Legislature passed a bill permitting gay marriage. That bill was signed into law on February 13, 12.

California voters were not alone when they rejected gay marriage. State after state has followed suit. When put to a popular vote, gay marriage is frequently vetoed. In fact, in 31 of the 31 states where gay marriage was put to a vote, the voters refused to pass the referendum. Interestingly, a Field Poll taken in 2008 concluded the majority of Californians approved of legal same-sex marriage. In 2010, a CNN poll reached similar results. The poll found that, on a national scale, the majority of Americans approved of legal same-sex marriage. In 2011, the Pew Research Center reached the same conclusion finding 46% of Americans in favor of same-sex marriage and 44% opposed. Considering all of these statistics, why do voters reject same-sex marriage in the polls? Whatever the reason, a conclusion to this tumultuous battle is not on the horizon anytime soon.

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Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Should I consider Mediation during my San Diego divorce?

News just broke that reality star, Kim Kardashian, has her legal team working very hard to ensure her divorce from basketball player, Kris Humphries, is handled in a private mediation; no cameras allowed! It's Kim's hope that by taking their divorce out of the spotlight, the proceedings won't take longer than the actual marriage itself. A source close to the Kardashian family adds:

"A public trial is the last thing that Kim wants, and she has instructed her lawyer to formally petition the court so that the divorce can be heard by a mediator, which is routinely done in California, since it's a no-fault state. Kim doesn't want a long drawn out trial. She wants the mediation to be private, confidential, and legally binding. She and Kris have no assets together and kept separate bank accounts, so this is a fairly routine divorce proceeding. Kim just wants this over and done with."

Mediation is an alternative to going to court. It is a confidential process by which the parties get to try and settle the case with a third party neutral (mediator). It allows the parties a chance to communicate and have the opportunity to be heard. The greatest benefit to mediation is that you and your spouse get to come up with the terms of the agreement rather than the Judge deciding for you. There is a risk with putting fate in the courts, because you and your spouse know better than anyone, what is best for you and your family. It provides a win-win for the parties because you each have a role in making the agreement. On the other hand, when you go to court, one or often both parties are dissatisfied with the Judge's decision. Mediation will save time and money by not going through the court process, which can take months or even years for all the aspects of the divorce to become final and can be extremely expensive.

In California, it is required if you have children to attend mediation when getting a divorce to determine custody. Family Court Services interviews you and your spouse regarding the health, safety, and well being of the children involved. The mediator will determine what is in the best interest of the child(s) and propose a custody arrangement to the Judge. It can be as specific as you want including who the child(s) will be with for birthdays and holidays. Before going in front of a judge for your divorce, you may want to consider trying to work something out with your spouse instead by doing what's known as a divorce mediation as well.

San Diego County is known throughout the state of California for being less litigious, and more settlement-oriented, than other counties. There are attorneys who have specialized training in mediation and are settling the vast majority of their cases. Issues included in divorce mediation include but are not limited to: Distribution of property, child custody, child support, spousal support, retirement benefits and taxes. Some issues may be more difficult than others to discuss, but it is the mediator's job to keep the lines of communication open, brainstorm ideas with you and provide a safe environment for each of you to speak in an amicable way. Lack of communication or arguing may have been one of the reasons for your divorce; mediation has the ability to help you communicate with each other again, if only for the sake of your children.

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Is Your San Diego Business Safe in a Divorce?

February 6, 2012

Many San Diego residents own businesses that continue to operate and generate income throughout the owner's divorce. It is well established in California, absent an agreement otherwise, that a spouse is entitled to an interest in community property assets. Community property generally consists of all assets acquired during the marriage. We have previously blogged about the date of separation and its importance in the division of property in a dissolution proceeding. Business owners are confronted with a unique problem - is their business community property? What about the increase in value between the date of separation and trial?

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As a general rule, for the purpose of division of the community estate upon dissolution of marriage, the court shall value the assets and liabilities as near as practicable to the date of trial. Any income or assets acquired by a party between separation and divorce are separate property. However, the value of a particular asset is not determined until the date of trial. For example, consider this hypothetical. Husband and Wife decide to separate with intent to end the marriage accompanied by objective acts to demonstrate that intent. At the time of separation, the couple owns a house that is worth $150,000. Husband decides to move into a nearby apartment and Wife takes over all mortgage payments. Because they have a daughter still in high school, the couple decides not to file for divorce immediately. Two years later, because of market fluctuations, the house is worth $200,000. Although Husband moved out of the house and Wife made each mortgage payment following separation, they are both entitled to share in the increase in profit. The court may make orders to account for the mortgage payments made by Wife, but Husband will generally share in the increased value. Real property values can fluctuate dramatically between the date of separation and trial because parties may separate months or years before their case is finalized. If the asset is a typical community property asset such as a family home the value is determined as close as possible to the date of trial.

There is an exception to this general rule. Under California Family Code section 2552(b), "Upon 30 days' notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate of the parties in an equitable manner." Any party may petition the court to value an asset at the date of separation rather than closer to trial by showing that this alternate valuation is fair. A date of separation valuation of property is appropriate when the hard work and actions of one spouse alone and after separation, greatly increases the "community" estate, which then must be divided with the other spouse. However, if the asset increases in value from non-personal factors such as market fluctuations or inflation, it is fair that both spouses share in that increased value.

When a spouse operates a community property business after separation, there is a sense of unfairness when applying the general rule that the business must be valued as of the date of trial. The law recognizes that an increase in value of these businesses is primarily a reflection of the contribution of the owner's services. This exception applies especially to professional businesses such as law practices, medical practices, or contracting businesses. If the skill and reputation of the owner accounts for an increase in the assets value, the court may value the asset at the time of separation and divide the property accordingly.

Please contact us if you are considering a divorce from your spouse or have questions regarding property valuation. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

San Diego Residents, When is Your Date of Separation?

February 4, 2012

Often, the line between being married and being separated is blurred. Couples considering divorce have the option to experiment with a trial separation in order to give the spouses time to consider if divorce is their best option. Other couples decide to file for divorce and later reconcile. Sometimes those couples continue with the marriage and other times they resume divorce proceedings. The decision to end a marriage can be difficult and messy, however the parties' actions between the time of separation and a dissolution judgment can impact their case significantly.

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One reason why date of separation is so crucial is that it is used as the dividing line between the beginning and the end of the marriage. Surprisingly, for the purposes of property division, the date of divorce is not used as the date of the end of the marriage. California is a community property state. This means, for the most part, any contributions by either spouse after the date of marriage belongs jointly to both spouses. Any income of either spouse belongs jointly to both spouses. Further, any property or assets purchased with that income belongs jointly to both spouses. Few assets such as inheritances or property acquired before marriage are separate property.

To complete the divorce process, depending on the circumstances, can take anywhere between a few months to over a year. Presumably, both spouses will continue working during this time and purchasing assets. Do these assets and income belong to the respective spouses as separate property or to the spouses jointly as community property? How will these assets be divided upon divorce? Under California Family Code section 771, the earnings and accumulations of a spouse, while living separate and apart from the other spouse, are separate property of the spouse. Therefore, anything acquired by either party between the date of separation and the divorce is separate property. The next problem is - when did the couple "separate"?

Date of separation is often a hotly contested issue because it can determine how a number of significant items are distributed. For instance, it can determine whether a marriage is long-term or short-term, if one spouse is entitled to the lottery winnings of the other, and whether one spouse is entitled to any number of valuable assets acquired by the other spouse during the dissolution process. It would seem that deciding when the parties separated is an easy task that both parties could easily agree on. However, in a potential divorce situation, the behaviors of the parties can be confusing and separating spouses often send mixed signals to each other. When determining the parties' date of separation, the court looks to their private conduct rather than how they behave publically. This comes from an understanding that many couples keep up public appearances of a marriage for many different reasons such as for the benefit of any children they have. The ultimate question to be decided in determining the date of separation is whether either or both parties has the subjective intent to end the marriage and furthers that intent through objective conduct. This is a factual question and the court looks at various steps taken by the spouses to demonstrate the final breakdown of the marriage.

In order to ensure the court views your actions as conduct furthering the intent to end the marriage there are a few steps you can take. First, live separate and apart from your spouse. To be clear, this means moving out of a common residence. Second, cease engaging in any romantic conduct. Do not send cards, flowers, or any gifts to your spouse because this could be construed as an attempt at reconciliation. Third, do not perform marital duties such as doing laundry, cooking, or cleaning for the benefit of the other spouse. Fourth, communicate your intent to end the marriage to your spouse clearly. Fifth, immediately cease the commingling of finances with your spouse, especially the purchase of any real estate. Finally, simultaneously attending social gatherings with your spouse is a mixed bag. One court held that as long as the spouses were not attending these functions "together" there was no problem deciding date of separation at an earlier time. However, many still argue that this attendance is controversial.

Please contact us if you are considering a divorce from your spouse or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

California's No Fault Divorce Travels to New York

February 3, 2012

A New York Court recently granted the state's first contested no-fault divorce. While New York's no-fault divorce law is only one year old, California enacted no-fault divorce over 40 years ago, in 1970.

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photo by Keith Lovett

Wife filed for divorce under New York's year old no-fault divorce law on the grounds that her marriage was "irretrievably broken." Wife testified that she has not had marital relations with her Husband for over five years, they slept in separate bedrooms and never ate meals together. Although she is in poor health, she testified that her Husband had not taken her to her doctor's appointments in the last five years or even asked about her health for the past ten years. She further testified that she had "no hope for the marriage ... and that her only wish is for a divorce so that she can have one-half of her marital assets and leave them to her four children before her demise."
Husband contested the divorce because he wanted to remain married saying he "worked hard to acquire everything the parties had" and didn't want to lose it in a divorce.

The Court applied the new no-fault law and granted Wife's request for a divorce stating, "[I]t is this Court's determination that the parties' relationship has so deteriorated irretrievably ...the plaintiff is entitled to a judgment of absolute divorce,"

In California, a no-fault divorce allows for a divorce without requiring either party to present evidence of wrong doing or breach of the marital contract. The idea behind a no-fault divorce was that removing the fault requirement would also remove some of the bad blood from the divorce process, and allow couples who wanted to break up to do so without having to make false allegations to justify the divorce to the court. No longer would couples, or even just one party, who wanted a divorce have to choose between lying under oath in open court or remain married.

Prior to no-fault divorce in California, a divorce could be obtained only through a showing of fault. This requirement meant that one spouse had to plead that the other had committed adultery, abandoned them, was cruel, or some other culpable acts. To get a divorce, parties often lied, colluded and committed fraud upon the court in order to get around the statutory limitations of the fault based requirement. Prior to the enactment of no-fault divorce, many prominent attorneys and judges in California believed that the "legal fictions" used by parties to satisfy the requirements for divorce made oaths meaningless and threatened the integrity of our legal system by encouraging perjury. Without committing perjury, many couple could not obtain a divorce, even if both parties wanted a divorce.

California's no-fault divorce law provided a straightforward ground for ending a marriage - irreconcilable differences. Not only did California's no-fault divorce laws eliminate the fault requirements to obtain a divorce for spouses seeking a divorce by mutual consent, but also in cases where only one party to a marriage wanted a divorce.

No-fault divorce ushered in other changes to divorce laws. Under no-fault divorce, gender-based responsibilities such as the Husband always being responsible for child support while the Wife was always responsible for custody gave way to gender-neutral responsibilities such as both parties being eligible for custody and responsible for child support.

As an interesting side-note, California's no-fault divorce policy even invalided a Marital Agreement that was intended, after Husband had an affair, to "preserve, protect and assure the longevity and integrity of an amicable and beneficial marital relationship between them." In the Diosdado case, rather than divorcing, the parties agreed to be subjected to a legal obligation of emotional and sexual fidelity to the other. If either party volitionally engaged in certain acts with any person outside of the marital relationship, that party would be in breach of the Marital Agreement, which provided for liquidated damages should the obligation of sexual fidelity be breached. Damages included that the party in breach would be: (1) required to vacate the family residence, (2) solely responsible for all attorney fees and court costs, and (3) pay $50,000 over and above any settlement or support obligations. Of course, Husband had another affair and Wife sued for breach of contract, seeking to enforce the liquidated damages clause of Marital Agreement. However, the Trial Court granted Husband's judgment on pleadings, because the Marital Agreement was contrary to the public policy underlying California's no-fault divorce laws. Wife appealed, but the Court of Appeal affirmed stating, "Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage. [See Family Code §2310, Family Code §2335.] For that reason, the agreement is unenforceable."

Continue reading "California's No Fault Divorce Travels to New York" »

How will divorce affect my income taxes in California?

It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, "marriage" currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse's income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file "married filing separate" whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can't have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can't mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with "married filing separate" filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse's tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.

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