Recently in Spousal Support Category

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.

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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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Contempt in Family Law

family-law-brothers.jpgA family law contempt action can be a civil or criminal process which is used when one party is in violation of a court order. In the civil context, the goal of the action is to correct the problem, but if criminal contempt is pursued, the violating party pay be sentenced to five days in jail per violation. Family law orders are often ignored by one or both parties causing significant frustration for both sides throughout the case. It is an expensive and lengthy process to enforce court orders and the parties regularly end up disappointed by the court's treatment of the violations.

The word "contempt" is frequently used to describe one party's violation of a family law court order. For example, if one parent fails to make a court-ordered child support payment, the other parent might tell his or her lawyer that the supporting parent is in "contempt". However, despite his or her violation of a court order, a person is not in contempt of court until that finding has been made by a judge. Therefore, if you wish to pursue a contempt action, you will have to file that request with the court before the other party will actually be in "contempt". In addition, the general public is familiar with terms such as contempt. In a support case, the supported spouse may want to hire a lawyer to "contempt" the other side if he or she is not paying support.

family-law-contempt.JPGAlthough contempt is a common method of relief shown on television and in movies, it might not be the most practical in the family law area. Considering the child support example, sentencing a non-paying party to jail time might cause him or her to lose wages or even his or her employment. In family law, attorneys often caution clients not to "kill the goose that lays the golden egg". If the supporting spouse loses his or her job, he or she will be unable to pay support. This discussion also comes up in contentious divorce cases where a vindictive spouse may want to use information acquired during marriage to get the other party fired from his or her job. Unfortunately, an unemployed spouse cannot provide financial support to his or her former spouse and children.

The family code provides litigants with a myriad of options to enforce court orders, especially child support orders. It is advisable to consult with a certified family law specialist before filing an action for contempt. Such actions may cause more harm than good in your family law matter.

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Life Insurance and Support in Divorce

divorce-life-insurance.jpgAt the beginning of each divorce case, the parties always have questions regarding how the divorce will impact their daily lives, especially their finances. One of the biggest issues, and often most disputed, is support. The parties cannot plan for their separate futures until they know whether a support order will be made and the level of support which will be ordered. Once the parties have a support order or agreement they will next consider what that support amount is intended to cover? Will my spouse have to continue paying my health insurance? Will my spouse pay for our children's health insurance? Will my spouse pay for uncovered medical and dental expenses? Will my spouse pay for extracurricular activities? Will my spouse pay for childcare? Typically these are the main concerns for divorcing parties when discussing support issues. However, it is not uncommon for family law litigants and their attorneys to forget one important issue - support in the event of the death of the paying spouse.

Life insurance can be an uncomfortable topic of discussion; however, the issue of life insurance is an extremely important subject to include in divorce settlement negotiations. In the event that the parties cannot reach a full agreement regarding all issues, they can ask the court for orders. The court has jurisdiction to address the issue of life insurance and to make appropriate orders for the parties. In cases where child and/or spousal support amounts are relatively high, it is reasonable to consider insuring the paying spouse as a form of security for support. In high conflict cases the supporting spouse may be hesitant to agree that his or her former spouse will be the beneficiary of an insurance policy on the supporting spouse's life. The supporting spouse often says "I don't want to give my former spouse more incentive to kill me". This type of argument will not likely be given much weight by a family court judge.

divorce-insurance.jpgThrough agreement or court order, once the parties determine that the supporting spouse's life should be insured as security for support, the attorneys and clients should discuss the amount of policy and which party should be responsible for the premiums. In cases where the parties take out life insurance as security for child support, the supporting spouse may be ordered to pay the life insurance premiums in the form of additional child support. If available, the parties often agree that the supporting spouse shall maintain a currently existing life insurance policy. The total amount of insurance should be based on the monthly support obligation and the number of years support will likely be paid. Each case is unique; therefore, it is important to discuss the issue of life insurance as security for support with an experienced family law attorney.

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What Can You Learn From Looking at the Petition?

January 19, 2015

divorce-petition.jpgThe realm of family law, as is the case with pretty much all areas of law, is filled with lots of legal paperwork and legal jargon. Being able to understand and properly fill out the judicial council form is half of the battle for a layperson. These forms can provide you with a lot of information that will be helpful throughout your case. The divorce petition, for example, is one of the first forms filed in a family law action. Even without having a family law attorney to review and explain the form to you, you can easily learn a lot by yourself simply by taking a close look at the Petition from top to bottom.

The Petition (i.e. Form FL-100 on the top right corner) is a one page document (front and back) that you will receive when your spouse has filed for a divorce, separation or annulment. Beginning at the top left of the document, you can note whether your spouse has hired an attorney to represent himself/herself or if he/she is in pro per and intends on proceeding without legal representation. If your spouse has hired an attorney, the attorney's name, state bar number and address will appear in this box. You can then visit www.calbar.ca.gov to perform an attorney search or you can review various websites to get more information about the attorney that your spouse has hired.

Below the contact information section of the form, it will specify the address of the court. This will tell you where your case will be heard so you know whether you will have to drive to North County San Diego, downtown, East County, etc. to attend your court hearings.

Below your names, there is a box that indicates whether the Petition is for 1) Dissolution of Marriage, 2) Legal Separation or 3) Nullity of Marriage. This lets you know when your spouse actually wants a divorce or if he/she prefers to get a legal separation. If your spouse checked the Nullity of Marriage box then your spouse is contending that your marriage is not legally valid.

Under the section of "Statistical Facts" you can see what date your spouse is claiming is your date of separation. If you disagree, you can claim a different date of separation on your Response form. A family law attorney can help assist you in determining the appropriate date of separation to claim.

divorce-separation.jpgUnder Section 4 and Section 5 of the Petition your spouse should have listed all items that he/she contends are his/her separate property and which items are community property and subject to division by the court.

If your spouse has filed for either a dissolution of marriage or legal separation then he/she can either claim that the reason is because of irreconcilable difference or incurable insanity. This selection will be marked in Section 6 of the Petition. There are several reasons why a person can request a nullity of marriage. If your spouse is filing for nullity of marriage, his/her reasoning will be identified in Section 6 as well.

Section 7 of the Petition will give you an idea of what your spouse is requesting as far as custody of your children, if any, who will pay attorney fees and spousal support, etc. Please note that just because your spouse checks the box, does not mean that the court will order his request. Don't take these checked boxes at face value and remember that the law may not even support your spouse's requests.

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Divorce Myths and Urban Legends Debunked

divorce-myths.jpgAs a divorce attorney, most of my clients come to see me for the first time with some misconceptions regarding California family law and/or divorce procedures. When clients mention divorce to family and friends their loved ones often have some input and suggestions based on personal experience or "horror stories" they have heard. While they are well-intentioned, family and friends may not be completely on point with their legal advice. Below is a list of common divorce myths and urban legends that I often spend time debunking with my clients.

"Title of Property Controls": Some clients come into my office assured that if a bank account, house, or retirement account is in his or her name it is "their" asset and will not be divided with his or her spouse pursuant to the divorce. Wrong. While title of property can be relevant to determining whether the property is community (and will be divided equally by a court) or separate (and will be confirmed to the title holder), title is not dispositive to the characterization of property. As a general rule, all property acquired during marriage (except by gift, inheritance, or devise) is community property and subject to equal division. This means that even if title to a vehicle is held by one spouse, that vehicle will be subject to equalization if it was acquired during marriage with community funds.

divorce-myths-custody.jpg"The Mom Will Get Custody": As we have previously blogged, there are many misconceptions about the role of gender in family law, especially regarding custody and visitation. Pursuant to the California Family Code, it is in the best interest of the child(ren) to have frequent and continuous contact with both parents. Legally, there is no distinction between fathers and mothers as the preferable parents.

"Spousal Support and the 10 Year Mark": The myths and urban legends regarding spousal support (commonly referred to as "alimony") in California are plentiful and most of them relate to the ten (10) year mark of a marriage. Although the length of marriage is a consideration for the court when it determines the length of time a paying spouse is obligated to pay spousal support, there is no minimum length of marriage required to receive spousal support. In addition, the length of the marriage has little to no bearing on the amount of support ordered.

"I Do/Don't Have to Maintain My Spouse's Health Insurance": On the issue of health insurance clients tend to believe what they want to hear. The paying spouse believes that when he/she files for divorce he/she can cancel the health insurance of his/her spouse. In contrast, the supported spouse who is often carried on his/her spouse's health insurance policy believes his/her spouse should maintain this policy indefinitely. Upon filing for divorce/service of the Summons (depending on whether you are the Petitioner or Respondent), Standard Family Law Restraining Orders take effect which prohibit cancelation of a spouse's health insurance policy. In addition, upon divorce, a party cannot remain on his/her former spouse's health insurance policy absent COBRA coverage.

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Upcoming Changes to Family Code Section 4323(a): Same-Sex Equality

October 21, 2014

same-sex-equality.jpgGender neutral language has not always been present in the California Family Code.
For instance, the current California Family Code Section 4323(a)(1) reads as follows:

"Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1." [emphasis added]

In other words, as the current provision stands, if you are paying spousal support to your ex-wife and she is now living with a member of the opposite sex (i.e. a new boyfriend) then a family law judge will presume that your ex-wife doesn't need as much spousal support and you could perhaps petition the court for a modification of spousal support. This of course is merely a presumption, not a certainty, so your ex would have an opportunity to show the judge that there is not a reduced need for spousal support.

The problem with the provision as it is currently written is that many divorce attorneys represent clients who are paying spousal support to their ex who is actually cohabiting with a same-sex partner, with whom they are in a romantic relationship. If your ex-wife is now living with a female roommate and you have established that their relationship is indeed intimate then you would want the family law judge to presume that her need for support is now reduced. But because the presumption only applies to cohabitation with a person of the opposite sex, herein lies the problem that many San Diego attorneys come across.

However, in July 2014, Governor Jerry Brown passed Senate Bill 1306, which will remove biased language from the California Family Code and instead recognize married spouses equally, regardless of their gender. With the passing of SB 1306 and the subsequent changes to Family Code Section 4323 (a)(1), gender distinction in this family code section is essentially being rendered obsolete. Family Code Section 4323(a)(1) will read as follows and will take effect on January 1, 2015:

"Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1." [emphasis added]

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Divorce for Men

divorce-for-men-001.jpgOne of the popular marketing strategies for family law firms throughout San Diego County is promoting "divorce for men". From billboards to newspaper ads and firm websites, many law firms advertise a focus on "husbands and fathers" and protecting their rights. "Men's rights" is an issue that many litigants associate with divorces, custody battles and domestic violence cases. However, is there really a different skill level involved when representing husbands and fathers or is this advertisement nothing more than a way to attract male clients?

It is a common belief that men walk into divorce court, a custody battle or a domestic violence restraining order hearing with the deck stacked against them. There is an assumption that men automatically will have to pay an exorbitant amount of money in support and/or to equalize property division. In addition, the general public assumes that the court tends to give women custody of minor children. With regard to domestic violence hearings, men assume that women are given the benefit of doubt and that restraining orders are granted more often than not. In reality, although a particular judge may have a bias against one gender or the other, the law makes it clear that men and women should be treated equally in divorce proceedings, custody hearings, or in domestic violence cases.

In San Diego divorces, support comes down to clear cut numbers. If a woman is the high income earner, she is legally obligated to pay child and/or spousal support if the circumstances permit. In addition, the same is true if a man is the high income earner. With regard to property division, under the law, all community property should be divided equally regardless of the sex of the parties. There is no differentiation between men and women with regard to support or property division in California divorce cases. Consideration of gender in making these determinations is an appealable offense.

Many of the stereotypes regarding favoritism towards women in custody and visitation cases stem from actual case law and statutes. In the past, it was permissible for courts to give preference to women in custody disputes. Today, it is improper for courts to make custody determinations on the basis of gender. Men and women are equal under the law with respect to the desirability of their role as parents. Often, the Court encourages children to spend time with both parents and to mend any broken relationships.

An overwhelming majority of domestic violence restraining orders are filed by women against men. However, that does not mean that a restraining order filed by a woman against a man is automatically granted and that men are disadvantaged. Statistically, women are more frequently the victims of domestic violence and men who are victims are less likely to report it than women. As a factual matter, most restraining orders are granted on a temporary basis until the matter is heard by the court and the accused is given the opportunity to present a defense. In San Diego, family court judges do not take the deprivation of a person's liberty lightly and require evidence of domestic violence before they will grant a permanent restraining order.
Considering that men and women are on a level playing field under the law, it seems that catering towards "men's rights" might be more of an advertising technique rather than a true skill set.

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VA Disability Compensation and Divorce in San Diego

October 14, 2014

VA-disability-compensation-001.JPGSan Diego is known for its large population of military members and their families. In the San Diego County there are 16 naval and military installations of the U.S. Navy, U.S. Marine Corps and U.S. Coast Guard. We at the Law Offices of Nancy J. Bickford are grateful for the countless sacrifices that our military men and women make. We understand that many military members receive injuries or disabilities (both mental and physical) as a result of their service, or have injuries that are made worse during service or training. In San Diego, when a veteran is going through the divorce process, he/she may be concerned about how much of his/her disability compensation from the Department of Veteran's Affairs will be lost due to property division, spousal support and child support obligations.

VA disability compensation is a monthly tax-free benefit that is meant to provide veterans and their families with reasonable and adequate compensation for such injuries or disabilities. The amount of the disability compensation that a veteran is eligible to receive depends of the seriousness of the disability and its effect of the veteran's ability to earn a living. VA disability compensation is not necessarily subject to the same rules of division in divorce as most other types of income or assets.

Division of Property
With regard to property division in a divorce, VA disability compensation is not considered an asset in divorce. Unlike military retirement benefits, which are considered a marital asset subject to division, the Uniformed Services Former Spouses' Protection Act clearly exempts VA disability compensation from being treated as a marital asset subject to division upon divorce. This means that if a spouse establishes that a bank account contains only VA disability compensation then these funds would be awarded to the veteran as his/her separate property.

Spousal Support
When a Court calculates the amount of spousal support owed, typically all sources of income will be taken into account. Since VA disability compensation is nontaxable, not subject to claims of creditors and not community property subject to division, many veterans assume that their disability payments are untouchable for purposes of calculating spousal support. However, many state courts have held that VA disability compensation may be considered income for purposes of calculating a spousal support award.

Child Support
A family law judge has the right to consider VA disability compensation as income available for child support. Also, if the party fails to pay court ordered child support then the party's VA disability compensation may be garnished.

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When Is My Support Payment Due?

support-payment.JPGOne of the first hurdles to overcome in the beginning of any contentious divorce case is to determine how much support is owed from one spouse to another, if any. Many times, a dispute over the proper support amount lands the parties in court for a short hearing at the outset of the case. After a month or two of crunching numbers and producing financial information, the parties are typically relieved when they walk out of the courtroom just to have a number that they can count on to pay or receive each month. In addition, many times the parties reach an agreement regarding the amount of support on the courthouse steps and simply read their agreement on the record in front of the judge. Although neither party is usually satisfied with the amount of support, having certainty regarding monthly support provides both sides with a little stability.

The amount of support is usually the main focus in any support negotiation or hearing. However, often times the parties, attorneys, and judges forget to include details (or decide not to include details) regarding when the support payments are due each month. In a typical scenario the parties appear in court on a particular date during the month and receive a support order that is effective another date. On the first date of the following month, the supported spouse expects to get that first support check in the mail. After waiting a few days, the supported spouse may call his or her spouse or his or her attorney claiming that the paying spouse is "late" on payment. However, careful review of the support order is necessary to determine whether the paying spouse is late on his or her payment. Many times, the support order is silent on the due date of the monthly support payment.

An optimal order will state something like "Effective August 1st, 2014, and payable on the first of each month thereafter, Husband shall pay to Wife for her support and maintenance the sum of $2,000.00 per month". Pursuant to the default family code provisions, absent a specific due date for support, the support payment is due on the last day of the month in which the support payment is to be paid. The paying spouse may be able to go over a month without paying support after the hearing which puts the supported spouse in a difficult financial position as bills become due.

In addition to waiting to the last minute to make support payments, some paying spouses argue that the support order does not become effective until a formal order is signed. Following most support hearings, the parties must agree upon and execute a formal order. However, this process can be delayed if the parties "disagree" on exactly what was ordered in court. Luckily, California courts have held that support orders become operative at the moment of pronouncement. This means that the support order is effective prior to the execution of a formal written order.

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California Divorce 101

community-property-split.jpgThe practice of divorce law can be a complicated process; however, family law can be boiled down to the following basic areas: property division; child custody and visitation, support, credits and reimbursements, and attorney fees and costs.

Property Division
In every divorce case the parties must characterize and divide all of the property they own. Absent a different agreement by the parties, all property acquired during marriage by either party is community property and should be divided equally. All property acquired prior to marriage or post-separation is the separate property of the acquiring party. In addition, all property acquired at any time by gift, devise, or bequest is the separate property by the acquiring party. These basic principles are the guidelines for division of property in a divorce case.

Child Custody and Visitation
If divorcing parties share minor children, they must reach an agreement (or receive an order from the court) regarding legal and physical custody of their children. Legal custody is the right to make decisions regarding the health, wellbeing, and education of a child. In most divorces, the parties agree to share legal custody. Physical custody is the determination of how the parties will share time with the child. Disputes over visitation and timeshare have the potential to drag a divorce case out for years. If the parties keep in mind that the gold standard for custody and visitation is the "best interests of the child" they should be able to resolve custody disputes amicably.

Support
community-money-1.jpgIn all divorce cases the parties must address the issue of spousal support in order to determine whether it is appropriate under the circumstances. If the parties have minor children they also must consider whether child support is appropriate. As a basic starting point, the parties or their counsel can use the DissoMaster program which provides guideline child and spousal support amounts based on both parties' income, tax status, and other guideline deductions. Although the law regarding child support is different than spousal support, guideline amounts are a great starting point for discussion.

Credits and Reimbursements
Separating one household's finances into two can be a complicated process. Post-separation, both parties typically pay for expenses incurred by or for the benefit the other. In addition, one party may also have exclusive use and possession of a community asset such as the marital residence. Depending on the case, the parties may want to create an accounting of their requests for reimbursements and/or credits. These requests are within the court's discretion and the parties do not often get a dollar for dollar reimbursement for each joint expense paid post-separation. Further, credits and reimbursements are often offset against support that was not paid during the beginning of the divorce process.

Attorney Fees and Costs
If either party is represented by counsel in the divorce process, the parties must determine how responsibility for attorney fees and costs must be allocated. If the parties cannot resolve this issue by agreement, the Court will determine the proper allocation of attorney fees and costs.

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Pamela Anderson Divorces Same Person for a Second Time!

July 21, 2014

Anderson-Salomon-split-again.jpgLooks like the second go around didn't work out for former Baywatch star, Pamela Anderson, and husband Rick Salomon. The couple married for the first time in 2007 and were together only a couple of months before getting an annulment. Then this past October Pamela revealed that she was seeing her ex-husband again. By January 2014 the couple was married again. However a mere six months later their married has fizzled yet again and they have filed for divorce based on "irreconcilable differences."

Anderson and Salomon aren't the first couple to marry each other twice and file for divorce twice. In fact, this situation isn't all too uncommon these days. However, one question that divorce attorneys are often asked is what is the length of marriage when couples divorce, remarry and then divorce again? Are the lengths of the two marriages added together? Or are each of the marriages treated completely separately for purposes of determining the length of marriage?

Determining the length of marriage is important in divorce cases because it is used to help calculate the length of a spousal support award and also to figure out what is community property (property acquired during the marriage) versus separate property (property acquired before marriage). Spousal support, in particular, gets a bit complicated when the parties decide that they want a second divorce from each other. The Court might add the length of the first marriage to the length of the second marriage for purposes of determining the "length of marriage". Or the Court might determine that just like cohabitation prior to marriage is not considered when calculating a couple's length of marriage, a party's previous marriage to the same person should not be included in the length of marriage calculation.

In the case of In re Marriage of Chapman, the parties married in 1960, divorce in 1981, reconciled and separated on and off for three years and then remarried in 1982. The second marriage ended after only 3 ½ months. (191 Cal.App.3d 1308). The trial court held that the length of marriage was only 3 ½ months and consequently ordered a brief period of spousal support. However, Wife appealed and the appellate court held that the parties' 1st marriage of 19 years could be considered by the trial court in determining spousal support. The court reasoned that it would be unjust to not consider the entire marital history of the parties because of the brevity of time between the end of the first marriage and commencement of the second marriage, the collective length of their martial relationships and the uninterrupted nature of Husband's legal responsibility to support Wife. The Court further reasoned that if only second marriages are taken into consideration then it would create an incentive for the spousal support payor to convince his/her ex-spouse to remarry and then quickly divorce him/her again.

Remarrying your ex-spouse for a second time doesn't always mean that the court will consider the combined length of both marriages. In the case of In re Marriage of Bukaty, for example, the parties were first married for 12 years, then remarried each other 27 years later for a period of only 19 months. (180 Cal.App.3d 143). The Court in that case determined that spousal support should be based on the length of second marriage only.

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Securing Spousal Support with Life Insurance

July 10, 2014

spousal-support-insurance.jpgSpousal support is typically a contentious aspect of many divorces here in San Diego. Many divorcing couples spend a lot of time litigating the amount of spousal support to be paid by one party to the other. However, once the parties have settled or the Court makes a decision regarding the amount of spousal support, the party receiving the spousal support should also consider securing future payment of spousal support through a life insurance policy.

California Family Code Section 4360 specifically gives the family law court authority to order the supporting spouse to maintain life insurance on his/her life for the benefit of the supported spouse. The purposes of the life insurance is to ensure that the supported spouse will not be left without means of support in the event that the spousal support is terminated by the death of the party who has a continuing obligation to pay spousal support.

If you are the supporting spouse, you likely won't want to be ordered to purchase and maintain life insurance for the benefit of your ex-spouse because then your ex-spouse will essentially "benefit" from your death. This can be a very unsettling feeling, especially in high conflict divorces where the supporting spouse is already bitter about paying spousal support.

spousal-support-check.jpgThe amount of insurance provided pursuant to Family Code Section 4360 should relate to the actual amount of the spousal support obligation the supporting party was ordered to pay and the length of said obligation. A present value calculation as well as any potential tax savings (as a result of receiving the life insurance proceeds instead of taxable spousal support) should be considered in determining the level of life insurance to be maintained.

If you are the supported spouse, then it would behoove you to stress to the court that you want your ex-spouse to be ordered to maintain life insurance for your benefit. You will also want to make sure that the policy benefits are adequate and to that you are listed as the beneficiary of the policy so that you receive payment in the event of your ex-spouse passing away. Securing spousal support with life insurance may be very necessary for you to maintain your lifestyle or be able to support your children when your ex passes away.

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Your Divorce Benefits - What Happens When You Re-Marry?

June 26, 2014

divorce-heart-001.jpgTMZ reports that actor Jeremy London managed to finalize his divorce from Melissa Cunningham, get married to Juliet Reeves and become a new father to son Wyatt all in the span of one week! That sure is a lot of change for one person. With all that change, I wonder if he contemplated how his new marriage might affect the terms of his recent divorce.

It is very common for people to get remarried after a divorce. Usually the new marriage doesn't happen quite as quickly as London's did. Nonetheless, before getting remarried, it is important to seriously consider how your remarriage can affect many of the benefits that you may still be receiving as the result of a previous divorce. One specific consideration is the possibility of discontinuation of spousal support.

Spousal support, for instance, will cease when the partner who is receiving the support remarries, unless the parties have agreed in writing otherwise (California Family Code Section 4337). If you settled your divorce, your agreement should include a provision to this effect. However, some agreements may specifically state that spousal support will continue to be paid regardless of whether the supported spouse gets remarried. Or an agreement may provide for a lump sum support payment or transfer of property in lieu of support, in which case the supported spouse's remarriage will not affect the spousal support agreement. If you are contemplating remarriage, it is important to review the terms of your divorce agreement and to be aware of the fact that there is a good chance that as soon as you get remarried, you will stop getting that monthly support check in the mail from your previous spouse.

divorce-remarriage-001.jpgIf you are the payor of spousal support and you are the one who remarries, then your obligation to pay spousal support to your first spouse will not cease. However, re-marriage after a divorce will still have a significant impact on the person who was the bread-winner in the first marriage (i.e. typically the one paying support). Not only is that person contributing to the finances of the former household, but he/she is now also financially contributing to the new household. This may pose some issues with your new spouse who might resent the fact that a portion of your money is going to your ex-spouse instead of your new family.

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Types of Spousal Support

spousal-support-flower.jpgIn San Diego and throughout the state of California there are two types of spousal support which can be awarded by a family court judge. The two types of spousal support are temporary (pendente lite) spousal support and permanent (long-term) spousal support. The type of spousal support awarded is dependent on what point in the case the award is made. Often times family law litigants have various questions about spousal support especially after their first spousal support hearing. One of the most frequent questions asked is, "How long will the spousal support order last?"

Prior to entry of Judgment, any spousal support award made by the family court judges will be a "temporary" spousal support order. At the end of a dissolution case, the court will reevaluate the amount of spousal support being paid and make an ongoing "permanent" spousal support order. When parties first separate, one spouse may not have access to community funds and therefore he or she must request a hearing immediately to obtain an order for support. At times, that first rush to judgment can result in a slightly higher or slightly lower amount of support than may be appropriate on a more permanent basis.

In making a "temporary" spousal support order, the family courts in California are not as restricted using discretion than other court systems. For example, many other state court judges are required to apply a specific formula which considers the parties' incomes and various other factors. In California, although many family court judges make spousal support awards using a default formula, they are not required to. In practice, family court judges often refer to the spousal support amount as suggested by guideline formulas and make awards based on that information.

spousal-support-gavel-001.jpgWhen family court judges make "permanent" spousal support orders, they must consider all of the factors outlined in Family Code § 4320. Most importantly, the court will consider the ability of the supporting spouse to pay support and the need of the supported spouse for spousal support. Family Code § 4320 also lists factors such as the length of the marriage, the age of the parties, the health of the parties, and any history of domestic violence. Becoming familiar with these methods for calculating spousal support can be especially helpful for parties' in settlement negotiations. The measuring stick for any proposal in negotiation is what the judge would likely do if the matter were to proceed to court. Therefore, having that information available can assist the parties with proposing and accepting reasonable solutions.

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