Recently in California Category

Do I Qualify for an Annulment?

annulment2015.jpgThe relationship between former Baywatch star, Pamela Anderson and her husband, Rick Saloman would never be described as traditional. They were first married on October 2007, but separated less than 10 weeks later when Pam filed for divorce in December 2007. The parties reconciled for a brief period (about 2 weeks), before Pam served Rick with the divorce papers. In February 2008 both Pam and Rick requested their marriage be annulled based on fraud. That request was granted in March 2008. The couple remarried sometime in late 2013 or early 2014. As with their prior attempts the current marriage appears to have failed as well.

According to reports, Pam filed for divorce in California citing irreconcilable differences. Rick on the other hand, filed for an annulment in Nevada (where he allegedly resides) once again stating fraud as the grounds for the annulment.

In California there are two types of annulments; void marriages, where the marriage is never legally valid and voidable marriages that are declared invalid by a court. The same rules for void and voidable marriages apply to domestic partnerships. I use the word marriage in this blog for simplicity reasons only.

VOID MARRIAGES
There are two statutory grounds for a "void marriage", and other non-statutory grounds for a void marriage. These marriages are void from the start. They cannot be made valid by the passage of time or the consent of the parties.
Incestuous Marriage [Family Code Section 2201]: This is the situation when the people who are married are close blood relatives. This does not apply to first cousins who are allowed to marry legally in California.
Bigamous Marriage [Family Code Section 2200]: where a spouse or domestic partner is already married to or in a registered domestic partnership with someone else.
Though not found in the Family Code, the failure to obtain a marriage license results in a void marriage.

VOIDABLE MARRIAGES
These marriages are made void, not by operation of law, but by order of the court. Each of the grounds for a voidable marriage has a statute of limitations so the passage of time can make an otherwise voidable marriage valid. In fact, voidable marriages are valid until they are annulled.
Age at the time of marriage [Family Code Section 2210(a)]: If the party seeking the annulment was not 18 years old at the time of the marriage and did not have the permission of his/her parents to get married.
Prior existing marriage [Family Code Section 2210(b)]: Either party was actually married at the time, but for 5 years prior to the marriage believed their spouse was dead or had been missing. This is different from a bigamous marriage. The difference is actual knowledge. In a bigamous marriage the party knows they are already married. In a prior existing marriage the party knows they are married but their spouse has been missing or presumed dead for at least five years before the wedding.
Unsound mind [Family Code Section 2210(c)]: This refers to a party that does not have the mental capacity to understand the obligations assumed by being married. This is determined at the precise time the marriage is conducted. This can include persons with intellectual disabilities, Alzheimer disease, and in very limited number of cases, intoxication is a basis for a finding of unsound mind. This is how Brittany Spears got her 55 hour long marriage to Jason Alexander annulled.

annulment-fraud.jpgFraud [Family Code Section 2210(d)]: This is the most common basis or seeking an annulment. The fraud alleged must be about something vital to a marriage. A bad credit score or undisclosed credit card debt will not constitute fraud for an annulment.
The fraud in annulment cases can include getting married only to obtain a "green card", lying about ability to have children, and/or lacking the intent to observe the obligation of "sexual fidelity." In California, if one party is having an affair at the time of the marriage, that may be considered fraud for the purpose of an annulment.
Force [Family Code Section 2210(e)]: Either party only consented to the marriage as a result of force.
Physical Section 2210(f)]incapacity [Family Code: When the parties got married one party was "physically incapacitated" (basically, that means one of the parties was physically incapable of "consummating" the relationship) and the incapacity continues and appears to be "incurable."
Seeking an annulment in California can be difficult and there are very specific timing requirements associated with the request. We understand that this is a sensitive situation that could greatly affect you and your family, and our team can provide you with the caring and outstanding legal counsel you need and deserve.

Continue reading "Do I Qualify for an Annulment?" »

Modifying Spousal Support Post Judgment - Payor Spouse

Post judgment motions to modify support orders can be tricky. Less so with child support orders; which are often as easy as putting numbers in a program (income, child sharing percentage, statutory deductions, etc) and pressing the return button. However modifying permanent spousal support is another story.

modifying-spousal-support.jpgIn order to justify a modification of permanent spousal support, you must be able to show "changed circumstances" since the prior order was made. There are many reasons for this requirement, such as the respect for prior court orders, the assumption that the court "got it right" when they made the prior order or simply to avoid parties coming to court every few months to try to get a new spousal support order. (This goes for both the payor wanting a lower support order and the payee wanting more monthly support) In terms of stipulated spousal support orders, the Court gives great deference and respect to the contracts of the parties, and will not disrupt those agreements without substantial justification. The reasons why a party must establish changed circumstances is not nearly as important as understanding the concept itself.

The concept of changed circumstances was summed up particularly well by the Court of Appeal in a case called Marriage of West. The facts of the case are unimportant. What is important is a quote from the decision which said:

"Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. It includes all factors affecting need and the ability to pay."

The focus of this blog is a discussion of the various ways a "payor spouse", that is the spouse ordered to pay support, can move to modify or terminate spousal support post judgment.

Often times, years after a Judgment of Dissolution is entered the payor spouse will suffer a decrease in their income. This could be the result of losing their job, retiring, or loss of investment/passive income. Whatever the reason, the payor is no longer able to afford to pay support at the previous level. Based on the quote from Marriage of West (above), this is a fairly clear cut change of circumstances. [Note: If you voluntarily quit or depress your income, it can be a very different story. See my previous blog on this issue.]

Another situation is when the supported spouse's needs have decreased. Examples of this are an increase in the supported spouse's income, a reduction in their monthly expenses, or co-habitation with a non-marital partner. All of these situations result in a reduction in the supported party's need for support, and are the basis for a motion to modify spousal support post judgment.

Termination of spousal support (not just reducing spousal support to $0), is a whole other animal altogether. Unless otherwise agreed to by the parties, spousal support generally terminates upon the death of either party or the remarriage of the supported party. Any other termination of support will require a showing that the supported spouse has become self-supporting and no longer has a need for support.

Whether a court will terminate spousal support will depend, in large part, on how long your marriage lasted. For marriages lasting less than 10 years the general rule of thumb is a payor spouse will pay spousal support for one-half the length of the marriage. For example if you were married for 8 years, you can expect to pay spousal support for 4 years. Of course, like most things in Family Law, none of this is set stone, so it is important that you discuss the specifics of your case with an experienced family law attorney.

modifying-spousal-support-10-year.jpgIf your marriage lasted more than 10 years, the Court will not terminate spousal support unless you can clearly show that the supported party can meet their financial needs without support. Even if the moving party can make this showing, the court will sometimes set spousal support to $0 per month, but retain the ability to modify the amount in the future should circumstances change.

Another option available to a payor spouse is to request the court make a "Richmond Order." As you have probably already guessed, this comes from the case Marriage of Richmond. (We are not very creative). Richmond Orders, sometimes called "step-down" orders, are usually made in long term marriages, and have the effect of putting the supported spouse on notice that they will receive support for a specified period of time. At the end of that period of time, support will either be terminated or reduced to $0 unless the supported spouse can prove they have the need for additional support or additional time. These types of orders are favored by the courts and are usually upheld on appeal.

Post Judgment spousal support modifications are a unique issue in family law, so it is important that you consult with a qualified family law attorney who is experienced with these types of cases.

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"Your Cheating Hart"

March 24, 2015

cheating-heart-infidelity.jpgActor and comedian, Kevin Hart, whose new movie Get Hard co-starring Will Farrell set to release on March 27th, is on top of the world. It also appears that the feud between Kevin's first Wife and mother of his two children, Torrei Hart, and his fiancé, Eniko Parrish is over. Life for Kevin was not always so rosy. Back in May 2014 Torrei took to twitter slamming the comedian for cheating and blaming the breakup of their marriage, in part, on his infidelity.

Recently, the Wall Street Journal published an article entitled Are You Likely to Have an Affair? According to the article, the "signs" include:


  • Gender

  • Certain ages being more prone to cheating

  • History of past infidelity

  • Dissatisfaction with the current relationship

  • Exposure to potential partners at work

  • Thrill seeking or narcissistic personal traits

While studies vary, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some type of extramarital affair.

In California, evidence of marital misconduct is not admissible, because California is a no fault state. Though not as common as it once was, there are states where evidence of marital misconduct is not only admissible, but is potentially damaging to your divorce case. In some states, if the other party can prove adultery, it can have an impact of spousal support. Despite being a no fault state, the issue of infidelity can still have an impact on your case, both financially and emotionally.

If the injured party (that is the spouse who was cheated on), can prove the cheating spouse used community property money to advance his/her affair, then the Court could find "dissipation" and order the cheating spouse to reimburse the community for money used for the affair. This could include hotel rooms, flowers, gifts, jewelry, dinners and or even vacations. This can be difficult to prove, and in some cases the amount to be recovered may not be worth the cost of fighting. Every case is different, so you should consult with an attorney to decide whether the issue is worth pursuing.

cheating-infidelity.jpgWhether you pursue recovery of the money the other party spent on their affair, you will be faced with the emotional impact of finding out your spouse has cheated. Divorce is by its nature an emotional situation; it represents the end of a commitment made at a time when two people were very much in love. These emotions are only exacerbated when one party learns the other party has been unfaithful. While it is natural to be upset and want to push for punishment or retribution, it is important not to let your personal emotions drive your divorce case. Allowing an emotional response to map the direction of your divorce case can not only be expensive to you, it may impact your children emotionally and will get in the way of you healing and moving on.

An experienced Family Law Attorney can educate you on the legal impact of infidelity and help you determine the best course of action for your case, and not merely as a reaction to the infidelity. No matter the reason for the divorce, coming out of the divorce financially and emotionally secure should be your top priority.

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Tips for Living Together While Legally Separated

March 23, 2015

legally-separated-living-together.jpgWhen a couple decides to get a legal separation or divorce, it doesn't necessarily mean that one party has to rush to pack up his/her belongings and leave the marital home right away. In fact, the parties can still establish a date of separation even if they are still living under the same roof. However, living together while separated might be a bit tricky and uncomfortable for most couples. There are certain things they should and should not do to make this uncomfortable situation a bit more bearable.

From a legal perspective, the date of separation is the first date when either party subjectively (i.e. mentally) decided that the marriage was over and not salvageable and their overt actions demonstrate that subjective frame of mind. Living separate and apart from your spouse is not required in order to establish a date of separation so long as the at least one spouse has the subjective intent to end the marriage and his/her actions indicate that the marriage is finished. Courts will consider a variety of things to determine the spouse's intent.

If both parties are staying in the marital home while they are separated and pending resolution of their legal separation or divorce, there is likely going to be a lot of tension. To mitigate the tension, it is recommended that the parties adopt some or all of the following tips:

1. Don't bring a new girlfriend/boyfriend into the mix. The cause of your divorce or legal separation might be due to your newfound love for another person. There is no need to put salt in the wound. But if you are adamant about dating someone new while still living with your spouse, be discreet about it

2. Create Guidelines for Interaction. If you're still living with your spouse while separated then you need to discuss items of daily living and interaction. This means that you two need to sit down and discuss how bills will get paid, whether or not you will share groceries, who will clean the house, etc. To the extent possible, many couples choose to just maintain the status quo of how things were handled during the marriage.

3. Consider going to a therapist. Having a neutral third party mental health professional help walk you through the stages of divorce can help you process things both emotionally and logistically.

4. Consider a nesting arrangement. Sometimes the tension and awkwardness is just too much too handle. If so, consider a nesting cutody arrangement as described in my previous blog entitled "Is a Nesting Custody Arrangement Right for Me?"

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Duke Order - What is it and How do I Get One?

March 18, 2015

dividing-house.jpgDealing with what to do with the family home is a big issue for divorcing couples. Typically one spouse will buy out the other spouse's interest or the house will be sold and the proceeds divided between the parties. However, when the parties have a minor child, another option that might be preferable would be to keep the house in joint names and allow one of the parents to stay there for a limited period of time until it is sold at a later date. If this is an end result that the parties want to achieve, then they will need a deferred sale of home order, also known as a "Duke order" (named after the case In Re Marriage of Duke).

Codified in Family Code Section 3900, a Duke order is an order that will delay the sale of the family home and will temporarily award exclusive use and possession of the home to a custodial parent. It doesn't matter whether or not that custodial parent has sole or joint custody of the child. The purpose of the Duke order is to minimize the adverse impact of divorce on the child's welfare.

Getting a court to actually order award a Duke order, or deferred sale of home order, might be a bit difficult as the court can only make the order under limited circumstances. The court must find that it is economically feasible to even do so and the court needs to balance the hardship on the child and parent staying in the home with the economic hardship that the deferment could have the on the parent living outside the home.

Specifically, Family Code section 3801 specifies that the court must first decide whether during the time when the home would be deferred for sale, that it would be "economically feasible to maintain the payments of any notes secured by a deed of trust, property taxes, insurance for the home" and also to maintain "the condition of the home comparable to that at the time of trial." To determine the economic feasibility, the court is required to consider the income of the parent who would stay in the home, the availability of spousal support, child support, and any other funds available to make the payments on the home. The reason the court looks at these factors is because the court does not want to make an order that could result in defaulted payments (i.e. a foreclosure), inadequate insurance coverage, or deterioration on the condition of the home which would jeopardize the parties' equity in the home when it is sold at a later date. (See Family Code Section 3801(c)).

dividing-house-divorce.jpgWhen deciding whether a Duke order is necessary to minimize the impact on the child, the court will consider things such as the length of time the child has lived in the home, the school grade the child is in, how convenient the home's location is to the child's school/child care, whether the home has been modified to accommodate a child's physical disabilities, the emotional detriment it would cause the child to change homes, whether the home would allow the parent living there to continue employment, each parent's financial ability to get suitable alternate housing, the tax consequences, the financial detriment to the parent who would not being staying in the home, and any other just and equitable factors. (See Family Code Section 3802(b)).

If a Court awards a deferred sale of home order, then it will also need to specify the conditions upon which the period of deferment will end, such as the child reaching the age of majority or the child graduating from high school.

Continue reading "Duke Order - What is it and How do I Get One?" »

Don't Tell Mom about this... Co-Parenting Tips

March 17, 2015

co-parenting-don't-tell.jpgAll parents go through challenges, but co-parenting has unique issues that are not resolved by conventional problem-solving skills. For many parents, co-parenting can be a difficult adjustment, but you are not alone.

Many co-parenting problems can be resolved by having a conversation with the other parent. Other times, the use of a professional mediator, parenting coordinator or therapist can assist parents in formulating a plan or addressing co-parenting issues in a way that puts the interest of the child first. Still other times, intervention by the Family Court is the only solution. This blog discusses common problems faced by co-parents and some suggestions to address them.

The Other Parent Dislikes You

When relationships end, it is not uncommon for bad feelings to linger long after the separation. This can be especially difficult when there are children involved. While it may be difficult to be the bigger person in these situations, doing so will be better for your child in the long run. Keeping your children protected from these feelings is important, especially if your children are young. When your children are young, it can be difficult for them to fully understand the situation and process why their parents are not getting along.

If the other parent attacks you with disrespectful or vulgar words, you may need to take additional steps to protect yourself and your child from this type of behavior. In some cases, a Domestic Violence Restraining Order may be necessary. This decision is usually made when all other attempts to communicate with the other parent in a respectful and peaceful way have failed. Such requests are taken very seriously by the court, and should only be made when the circumstances warrant them. If you have any concerns about your safety and/or the safety of your child due to the actions of the other parent, you should contact the Family Court or an attorney who can assist you immediately.

You Never Agree with the Co-Parent

When you and the co-parent were in a relationship, if you disagreed with the other parent, one of you would give in or a compromise would be reached. During your relationship, you likely shared common values and beliefs about raising children. This often changes as time passes or when the relationship ends and two parents are raising a child together, but separately.

If you find that the co-parent never seems to agree with you, or that you never agree with the way the other parent is caring for your child, it is important to discuss these concerns together. It is possible to resolve many common parenting issues by sitting down and discussing expectations and beliefs about parenting. It is likely you and the other parent will have differences in the way you parent, but if the children's best interest is at the core of your co-parenting relationship, you should be able to find common ground. It may be necessary to seek the assistance of a mediator or therapist to assist in formulating a plan of action.

Your Child Says the Other Parent is Talking Badly About You

co-parenting-whisper.jpgThis is especially difficult when the messenger is your child. In some cases, the other parent is making direct comments to the child that reflects negatively on you. Other times, the co-parent makes comments to third-parties when the child is nearby and within earshot. Whatever the circumstances, this can be a difficult situation to handle. The last thing you should do is fight fire with fire. When children hear their parents talking badly about one another, it may cause them to feel worried or sad. These are feelings your child should not have.

You will need to speak with the other parent as soon as possible. As difficult as it may be, try not to be confrontational about the situation, as that may cause tensions to rise and the situation to worsen. You do need to be direct with the other parent, that even though your relationship has ended, you will continue to be connected to each other through the child. So while bad feelings may linger, the relationship needs to be respectful and polite for the child's sake.

If this does not resolve the situation, you may need to seek the assistance of the Court or an attorney to intervene on your behalf.

The Other Parent Breaks Agreements Often

If you find the other parent is breaking the court order or makes agreements with you and then breaks the agreements, it is important to address the situation immediately. Most child experts will tell you that children need consistency in order to thrive. If one parent is constantly breaking the court orders, it can be very difficult for the children to find this consistency.

You need to be firm and clear with the other parent that you will not stand for their violation of court orders put in place for the best interest of your child. Explain to the other parent that if they are unhappy with the court orders, you will discuss their concerns, but until a new agreement is reached, you expect the current orders to be followed. Make sure to document your attempts to work with other parent as well as a calendar of their violations of the orders.

If your attempts to work with the other side are not successful, it is important to contact your attorney or the court to intervene.

Co-Parent Neglects Child

I do not mean that the other parent is criminally neglectful, but rather neglects spending time with the child. This can be difficult in many ways. One, if the other parent and your child were close, it is difficult to see your child emotional over loss.

It can also be difficult to go from being a co-parent to a single parent where you are forced to shoulder all of the responsibility. You may need to look to family and friends to provide assistance. Discussing the situation with a therapist familiar with divorce and child custody issues can also be helpful.

Always keep the door open for the other parent to have a relationship with your child, but make sure the other parent knows it will be at a time that is convenient for you and the child.

In most cases, discussing the situation with the co-parent is the best route to go. In stressful or difficult situations, you may want to consider seeking out the professional help of a counselor or mediator. Whether the two of you work things out on your own or with the help of a professional, having an open mind and being flexible will yield the best results when problem solving. A co-parenting program like OurFamilyWizard.com can be helpful.

Continue reading "Don't Tell Mom about this... Co-Parenting Tips" »

Can I Get Around the California Divorce Residency Requirements?

March 11, 2015

CA-road-sign-divorce.jpgAs one would reasonably expect, not everyone can file for divorce in California. In fact, California has strict residency requirements that each person filing for divorce must meet. Although there is no way of getting around these requirements, it doesn't mean that you absolutely can't get divorced in California.

California's residency requirements for married couples to file for a divorce, also known as a "dissolution of marriage", are quite clear. One of the first steps in filing for divorce is to file a Petition for Dissolution of Marriage. On Page 1 of the Petition (Form FL-100) the person filing for divorce, the Petitioner, must check the box under oath stating that either the Petitioner or Respondent (other spouse) has been a resident of California for at least six months and a resident of the county where they are filing for at least three months preceding the filing of the Petition. The form notes that at least one person of the marriage must comply with the residency requirement. Thus, if you don't meet the residency requirement but your spouse does, then you can still file for divorce in California.

If neither you nor your spouse meets the residency requirement, then this doesn't mean that you can never get divorced in San Diego. You actually have a few different options. First, you can simply decide to wait to file your divorce action until you meet the residency requirement. If you are pretty close to meeting this requirement then it might not be that detrimental to hold tight in the marriage for a bit longer. You can even establish a date of separation without actually filing the petition for divorce. Talk to an experienced family law attorney to learn how you can establish a date of separation.

CA-state-flower-divorce.jpgAnother option is to file a petition for legal separation instead of a petition for dissolution of marriage. As discussed in my earlier blog entitled, "Changing Your Mind from Legal Separation to Divorce," there are no residency requirements for a married couple to file for a legal separation in California. If you intend to satisfy the California residency requirements, then once time has passed and you meet the residency requirement, you can file an amended petition and ask the court to convert the petition for legal separation into a petition for divorce. This strategy is advantageous because it will give you immediate access to the Family Law Court to ask for temporary orders. Additionally, if the case involves domestic violence then the same judge can hear both the domestic violence issue and the divorce case. Additionally, since there is a 6 month waiting period in California to terminate marital status, by filing for legal separation, the clock will start ticking on the 6 month countdown even though you filed for legal separation instead of dissolution of marriage.

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Divorce Versus Annulment Matters When Filing Taxes

March 9, 2015

annulment-taxes-divorce.jpgIt's that time of year again...tax time! It's a time of gathering all of your financial documents and keeping your fingers crossed that you will get a big refund in the mail rather than having to pay Uncle Sam more money out of your pocket. Whether you got divorced or had your marriage annulled last year, filing taxes this year will certainly be different. In particular, if you had your marriage annulled, there are some specific issues you may have to deal with.

Whether you have been divorced or had your marriage annulled, either way you look at it, your marriage has come to an end. However, a divorce is the end of a marriage that was valid at the time the parties wed. An annulment, on the other hand, marks the end of a marriage that was either void or voidable at the time the parties wed. For instance, under Family Code Sections 2200 and 2201, the marriage may have been void in California if it was illegal due to incest or bigamy. Or under Family Code Section 2210, the marriage may have been voidable due to a number of reasons, including fraud, force, physical incapacity, and unsound mind. The marriage may also have been voidable because the party filing for the annulment was under eighteen years old at the time of the marriage. Or lastly, the marriage maybe voidable and thus an annulment granted if there was a prior existing marriage that took place after the former spouse was absent for five years and not known to be living.

If the marriage simply ended by means of a divorce (also known as a dissolution of marriage in California) by December 31st of the prior year, then you will be required to file a separate tax return for the taxes due April 15th of the following year. You won't be able to even file married filing separately if your divorce has actually been finalized by the court as of the end of the prior year.

annulment.jpgHowever, if your marriage ended via an annulment, then tax filing gets a bit more complicated. If you were married during the last tax cycle, then chances are that you filed your taxes as "married filing jointly" with your spouse. Once the April 15th tax deadline has passed, people who filed joint tax returns are usually not allowed by the IRS to change their filing status to file separately. However, since your marriage was annulled, that means that your marriage was never valid at the time you previously filed joint tax returns. Consequently, you must now file an amended tax return for the prior year as a single person rather than as married filing jointly. This may result in you paying more taxes because typically filing jointly with your spouse has some tax benefits that single filers don't get. On the flip side, if you would have paid less in taxes as a single person, then you will be entitled to a refund when you file the amended tax return. In addition to amending your previous tax return(s), you must file this year's taxes separately.

Continue reading "Divorce Versus Annulment Matters When Filing Taxes" »

Tips for Divorced Taxpayers

March 5, 2015

taxes-divorce-irs.jpgBy now, it's likely that you've heard the H&R Block commercials or you are at least aware of their well-advertised "Get Your Billion Back America" campaign. H&R Block, like many other tax service companies, is clearly committed to pushing for consumers to use their services so they can help them get the maximum tax benefit that they deserve. Whether you use H&R Block, one of the many online tax service programs, a personal accountant or do your taxes yourself, it is important to understand how marriage and divorce may affect your taxes. Here are some helpful tips for divorced taxpayers.

1. Know your Filing Status.
Just like getting married affected your filing status, getting divorced will too. If your divorce is official as of December 31st of the year prior to when you are filing your taxes (i..e divorced by December 31, 2014 for 2014 taxes filed no later than April 15, 2015), then you will need to file separate tax returns. No, not "married filing separately", but rather "single". A change in your filing status could drastically affect the amount of taxes that you are responsible for paying.

2. Adjust your Income Tax Withholding on your W-4.
As discussed above, a change in your marital status will affect your tax filing status. As a result, the amount of income tax that should be withheld from your paycheck will change. The Form W-4 that your employer gave you to fill out when you first started your, is what determines how much income tax you have withheld from each paycheck. So once your divorce is finalized, you should go to your payroll department and ask to fill out a new Form W-4 and update the number of allowances that you are claiming.

taxes-child-spousal-support.jpg3. Know When to Claim or Deduct Child and Spousal Support.
If you are receiving/paying either temporary or permanent spousal support and/or child support, then it is important to know how to properly claim or deduct it on your tax returns. Generally, if you are the one receiving spousal support, then you must claim it as income on your tax returns. Child support, however, does not count as income for federal income tax purposes and thus is not taxable. If you are the one paying support, on the other hand, you may typically deduct the spousal support payments from your income, but not child support payments. However, it's important to take a close look at your divorce decree because sometimes, spouses agree to designate spousal support payments as non-taxable and non-deductible.

Continue reading "Tips for Divorced Taxpayers" »

Is the Other Parents Nanny Raising Your Child?

March 4, 2015

babysitter-raising-your-child.jpgCelebrities are not immune to the problems which arise when two people try to co-parent their child following a divorce or separation; just ask Wiz Khalifa and Amber Rose. It was recently reported that the custody battle between Mr. Khalifa, the Grammy nominated rapper whose songs include "Black and Yellow" and "Payphone", and Ms. Rose, the mother of his one-year-old son Sebastian, is heating up. In papers expected to be filed with the Court, the rapper alleges Ms. Rose is neglecting their son by staying out all night, and leaving their son in the care of family members or babysitters most of the time. According to reports, Mr. Khalifa alleges Ms. Rose has made a habit of only seeing Sebastian for a short time in the morning before leaving him in the care of others.

Child custody can be one of the most difficult aspects of a family law case. Often times, one parent will rely on family members or other caretakers to provide care for a child during their custodial time. This can be frustrating to the other parent who may be available to care for the child during these times. In today's society, where both parents often need to work to financially support themselves and their children, it is not uncommon to rely on family or third parties, such as babysitters or nannies to assist in caring for their child. Issues arise when one parent is deferring a majority of the child's care to others. If the other parent is using third parties to shoulder a majority of the responsibility to care for the child, it could be a basis to modify a custody order in favor of the other parent.

The burden of proof for such a request will depend on whether there has been a final judicial determination of the child's best interest. Final custody orders are usually made following a full trial on custody or as part of an agreement reached by the parties.

If there has been no final judicial determination of the best interest of the child, the parent seeking to modify custody must only show that the requested change is in the child's best interest. In the case of one parent deferring responsibility for the child to third parties, the parent seeking to modify the order will need to show that it is better for the child to be with them than with the third parties. If there has been a final determination of custody, in addition or making a showing of best interest, the parent requesting the change must also show there has been a significant change in circumstances since the last custody order. The reason for this additional burden is that Courts are reluctant to modify custody orders without a compelling reason in order to avoid unnecessary changes in a child's schedule. This additional burden also helps to prevent unwarranted requests to modify custody and visitation orders. This does not mean that such a request is impossible, in fact they are granted all the time. It just means that there is an additional hurdle to overcome.

In Mr. Khalifa's case, if he hopes to be successful, he will need to show that Ms. Rose's choice to leave their son in the care of third parties a majority of the time is not in their son's best interest. He will also need to show that it would be better for Sebastian to be in his care since he is available to parent the child personally.

If you think your child is being left in the care of third parties by the other parent for an unreasonable amount of time, then it is important that you take action. Allowing the situation to continue may be viewed by the court as your acceptance of the other parent's decision. These types of requests are very fact specific, so it is important to discuss your case with a qualified attorney. Our attorneys are skilled in all aspects of child custody litigation, including request to modify visitation. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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Reconciling after Divorce is Finalized

March 3, 2015

rekindled-love.jpgThose who haven't been too jaded by divorce may choose to re-marry again. Perhaps they now know what they are looking for (or certain characteristics they are trying to avoid) in a partner or they are simply in a difference stage of life and ready for another go at marriage. But after all of the time, money and emotions that many couples go through to get divorced, the last thing you would probably expect is for that couple to give their relationship another try after their divorce has already been finalized and they have been restored to single status.

Believe it or not, people change, circumstances change, and sometimes ex-spouses are actually able to rekindle their flame post-divorce. If you are thinking about remarrying your ex, then you not only need to proceed with caution, but you also need to become educated on how your reconciliation or re-marriage will affect your divorce decree. Reconciliation after the divorce judgment has been finalized and entered by the court may require the assistance of an experienced family law attorney.

remarrying-your-ex.jpgIf you decide to re-marry your ex-husband, you may be surprised to know that not all of the provisions in your divorce decree are necessarily negated by your re-marriage. For example, many divorce judgments have a provision whereby the former spouse has waived the right to inherit from the other spouse. Remarriage to that same spouse does not void the divorce judgment, so a new estate plan will need to be considered. Spousal support is another tricky issue with regard to remarriage after a divorce judgment. If the divorce judgment includes a provision for one spouse to pay the other spousal support, when the parties remarry the spousal support will be terminated. However, if the spousal support had already ceased before remarriage, and the parties remarry but divorce a second time, then the Court might only take into consideration the length of the second marriage, rather than the combination of the first and second marriages to the same person. As discussed in my blog entitled "Reconciling after Filing for Divorce but Before Divorce is Finalized," the division of your assets and calculation of support may be significantly affected by filing for divorce a second time after reconciliation or re-marriage to the same person.

It would behoove you to consult with an experienced San Diego divorce attorney before you re-marry your ex-spouse and determine exactly which provisions of your divorce decree will survive your re-marriage. Hopefully the second time is a charm and your reconciliation is not a temporary fix. But in any case, if you have taken steps towards protecting yourself, your family and your finances, you will be better off.

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Lessons Learned from Couple Who Divides Beanie Babies in Family Court

February 26, 2015

beaniebabies-divorce.jpgIf you grew up in 1990s, chances are you are familiar with the Beanie Babies fad. However, if you somehow missed out on that craze, Beanie Babies were the extremely popular stuffed animals made by Ty Warner, Inc. (later renamed as Ty Inc.). They were so popular and "valued" that in 1999 a divorcing couple actually went to count to divide up their Beanie Baby collection. No, I am not kidding! Apparently, the couple was unable to figure out how to divide up their Beanie Babies by themselves, without court intervention, so they literally took them all to court and divided them one by one in front of the judge.

While the family law court provides individuals with their "day in court" to allow a judge to make a decision about their case, most people will agree that it seems pretty ridiculous to go to court to have Beanie Babies divided. Even as a family law attorney, I am a big proponent of helping my client resolve as many of their issues outside of court as possible.

Going to court can be very costly for both parties. They are not only paying their attorney's hourly fee, but there are other costs involved such as paying for a court reporter. Additionally, going to court means that if you are a working individual, you will have to take time off work to attend the hearings. Also, the divorce process will likely take much longer. The courts are extremely backed up and hearings are typically set months out. The longer your divorce goes on, the more anger, resentment and frustration seem to build up. Is it truly worth the time, attorney fees and emotional impact?

tug-of-war-divorce.jpgSo many issues can be dealt with outside of a court room. This includes division of your precious collection of Beanie Babies with your soon to be ex-spouse. If the value of your precious items is at issue, then bringing in a third party appraiser might be helpful. Also, when negotiating division of assets outside of court, it is important to carefully consider the item's current and future value. It may be a huge risk to assume that items, like Beanie Babies, will have a significant future value. If you let your spouse keep a $20,000 vehicle at no charge or offset, in order to keep your beloved collection of Beanie Babies, you might be highly disappointed when years down the road you find out that Beanie Baby is still only worth less than $10. It's a significant risk when you don't know the item's future value, but it's a risk you might have to take to move the negotiating process forward and stay out of court while proceeding with your divorce.

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Gwyneth Paltrow is Proof that Divorce Doesn't Have to be Ugly

February 24, 2015

celebrating-divorce.jpgGwyneth Paltrow's split from Coldplay's lead vocalist, Chris Martin, has been anything but ugly. Most celebrity divorces are buzzed about because of the crazy scandals that supposedly caused the divorce and the long-drawn out fights over money and custody that typically ensue. However, Paltrow and Martin have proven to have a refreshing approach to their divorce thus far...an approach I hope to see more of my clients taking in the future, mostly for the sake of their children.

The 42 year-old actress and Oscar winner is featured on the cover of the February 2015 issues of Marie Claire. In the magazine's article she reveals that there was nothing dramatic that caused her divorce from Martin. Rather, Paltrow explains that her 11 year relationship with Martin simply "hit a wall." In California, this type of situation would likely constitute "irreconcilable differences" as grounds for filing for divorce.

A lot of people get divorced because they are ready to focus on themselves, rather than continuing to try and make a failed relationship work. The best way to start this newfound journey of self-discovery and happiness is to not allow your divorce to get emotionally out of hand. This may be easier said than done but Paltrow seems to be evidence that it can be done. Paltrow and Martin have two children together, Apple, 10, and Moses, 8, and are allegedly treating each other with respect and even being supportive of their dating decisions, for the sake of their own sanity and the well-being of their children.

While appearing on The Howard Stern Show Paltrow explained that she's okay with Martin dating other women because she knows that he loves the kids and that "he wouldn't be with someone that wasn't great." So many times, people going through a divorce spend so much time focusing their attention on jealousy, anger and resentment towards their ex-spouse. But what they should be focusing on is the kids instead, with the understanding that their ex-spouse is likely going to continue to be in their life for quite some time as a co-parent. Paltrow seems to understand that importance of thinking about what her kids needs are, rather than her own, and working towards making the kids' lives better despite the divorce. Letting go of the fact that your ex-spouse is dating a new person, so long as he/she is good to your kids, is one way to not let the divorce take a turn for the worse.

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How Divorced Parents Should Properly Utilize "Our Family Wizard"

February 23, 2015

co-parenting-app.jpgAs previously blogged in my blog titled "Make Post-Divorce Co-parenting Easier with Apps," the Our Family Wizard software and database is a tool that many parents utilize and rave about. The program is particularly well-known in the family law community because attorneys and family professionals often encourage their clients to utilize the program especially in situations where the parents are in the middle of a highly contested custody case. In fact, as part of a divorce case, family law courts can even order parents to use the Our Family Wizard application.

If the program is used properly, it can significantly help keep high-conflict behavior under control. The possibility of having their lies, manipulations and aggressive behavior exposed through the app seems to deter abusive and inappropriate behavior between parents. However, in order to properly utilize Our Family Wizard and to get the most benefit out of it, it is important to understand everything that the program offers. It is known to be more than just a shared calendar. It gives users access to a variety of tools that help track parenting time, keep a schedule, share important information, track expenses and create communication between the parents. In essence, the program helps parents co-parent with less friction.

Although anyone can use the application, Our Family Wizard claims that it is specifically designed to reduce "the stress from communication and planning between parents who live in separate households." Often times in divorces, the children end up being the "middlemen" or used to relay information to the other parent. Our Family Wizard tries to avoid the children being caught in the middle by providing the parents with a joint calendar where they can create parenting plans, share activities, trade custody days and keep accurate records. There is also an information bank where the parents can share important information, such as the child's medical information, school information, and much more. It's in the children's best interest for the parents to collaboratively co-parent and avoid involving the children in the conflict.

The application also has a message board which keeps their communication secure and accurately documented. Especially in "he said/she said" cases this application, specifically the message board, can be extremely helpful to family law judges. One parent can't claim that he/she never got the communication because each message has a "read stamp" and is preserved in the database. Another great feature of Our Family Wizard is the expense log where the parents can track shared expenses and even make online payments from a checking/savings account.

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Divorce Monday - An Exciting Day for Divorce Lawyers

February 17, 2015

divorce-monday.jpgJanuary has been a busy and exciting month at the Law Offices of Nancy Bickford. After the New Year we hit the ground running and are busy at work filing new divorce petitions and continuing to push forward with settlement discussions and litigation preparation. Perhaps this has been due in part to the first Monday of January being known as "Blue Monday", which legal experts have more appropriately dubbed as "Divorce Monday".

Statistics have shown that "Divorce Monday" is the busiest day for divorce lawyers because it is the most popular day for couples to file for divorce. Over the holidays and festive season many couples endure a variety of strains on their marriage. Extra time with in-laws is bound to cause some tension among couples. The over indulgence in alcohol may bring out some couples' true emotions and anger with one another. And all the gift buying is pretty much a given for financial strain and arguing among married couples. No to mention the extra time spent with your spouse, instead of being away at the office, over the holidays is likely to highlight relationship problems and cause the cracks to start showing.

Despite these strains that many married couples inevitably go through during the holiday season, many people want to wait until after Christmas and the New Year before actually taking that step to file for divorce. This is especially true for those couples who have children because they don't want to take away from the excitement of the holidays. Thus a flurry of couples decide to wait until that first working Monday after the New Year to seek the help of professionals to dissolve their marriage. Hence why this day is known among lawyers as "Divorce Monday."

Those who start their divorce proceedings in January have a better chance of being done with their divorce by the end of the year. In California, the divorce process will take a minimum of six months from the date the person filing for divorce officially lets his/her spouse know about the divorce. Of course, it could take much longer if the parties end up litigating issues and are able to reach an amicable settlement. But at least by filing in January, the parties have a better chance of being able to call themselves single at the beginning of the following year if all goes smoothly in the divorce process.

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