DIVORCE FAQS AND LIBRARY

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DIVORCE AND DISSOLUTION SERVICES

Domestic Violence

Shattered Love, Broken Lives . . . Domestic Violence and Abuse

Decades and decades of research reveals that batters do not quit over time. Whether alcohol and drug abuse is a factor or not, domestic violence and abuse is a very serious problem . . . for both the victims and the abusers. There is some link between alcohol/drug abuse and domestic violence.

A recent study by the University of Massachusetts revealed that the vast majority of the abusers also engaged in other behaviors that resulted in multiple arrests over the decade for non-domestic violence crimes. While 60% were returned to court for abuse, 71% were rearrested for any crime.

Marriage was associated with reduced likelihood of new arrests for non-abuse crimes, but not new abuse. This suggests that marriage, at least for victims of intimate partner violence, is not “the safest place to be.”

The National Council’s Family Violence Department Web site contains copies of all state domestic violence laws. It can be found at http://www.ncjfcj.org/dept/fvd.

Paternity

Establishing Paternity in California: Who is the Daddy?

Most people heard about Anna Nicole Smith’s ex-boyfriend, Larry Birkhead, filing suit for Paternity in Los Angeles Superior Court at the end of 2006, demanding that Smith return to the U.S. with newborn daughter, Dannielynn Hope and submit the baby to a paternity test.

“Establishing parentage” in California means saying who the legal parents of a child are if the parents were not married when the child was born. If the parents were married when the child was born, the law usually considers the husband to be the father.

If you are not married when the child is born, you can sign a Voluntary Declaration of Paternity before leaving the hospital (or after). When people who are not married can not agree about parentage, the court can order genetic testing.

California paternity law authorizes blood tests in cases where parentage is disputed. The mother, child, and alleged father will be required to submit to these blood tests. If a party refuses to submit to blood tests, then the court has the power to resolve the parentage issue against that party.

Generally, a child’s parentage must be established before child support or custody/visitation orders are put into place. You can ask the judge for child support or custody and visitation as part of a case that establishes the parentage of a child. If paternity is challenged by the father, temporary child support may be awarded while pending whether the alleged father is the actual father. If the DNA test is negative, the child support paid may be returned to the paying party under California Paternity Law.

Finances

Am I Entitled to My Divorced Spouse’s Social Security Benefits?

If your former spouse qualifies for social security benefits, you may apply for benefits when your former spouse reaches age 60, even if your former spouse has not applied for the benefit for himself or herself.

Ten years is the magic number. You must have been married to the worker for 10 years before the date the divorce became final. In addition, the spouse seeking the benefit cannot have remarried. It does not matter if the working spouse has remarried.

The Social Security Administration website has very useful information. You are entitled to your divorced spouse’s insurance benefits on the worker’s Social Security record if:

A. The Worker is entitled to retirement or disability insurance benefits;

B. You have filed an application for divorced spouse’s benefits;

C. You are not entitled to a retirement or disability insurance benefit based on a primary insurance amount which equals or exceeds one-half the worker’s primary insurance amount;

D. You are age 62 or over;

E. You are not married; and

F. You were married to the worker for 10 years before the date the divorce became final.

Tax Return Planning During the Separation Period

Many couples going through divorce spend considerable time deciding whether to file married jointly or married filing separately.

Disadvantages of Separate Returns: Married couples who file jointly are taxed as if each spouse had exactly the same taxable income. Accordingly, substantial tax savings are realized by filing jointly.

Different Tax Rates on Separate Returns, Earnings Taxed Separately: If you are separated from your spouse but still legally married by the end of 2006, you must file separately unless you and your spouse agree to file a joint return or a court has entered a judgment of legal separation. A later obtained judgment or marital dissolution does not relate back to an earlier year in which you and your spouse were married.

You and your spouse will each be taxed on your respective earnings separately. But you will each have to allocate income, treating income earned before the date of separation as community property (taxable half to each) and income earned after the separation date as the earning spouse’s separate property. If all income is community income so that the income and deductions are divided equally among you and your spouse, the total tax on separate and joint returns will be the same.

Restrictions on Itemized Deductions and Child Care Credit: If you and your spouse file separate returns, you both must agree to itemize deductions. If not, then neither can. IRS Section 63(e)(1). No child credit may be claimed on a spouse’s separate return unless the other spouse was absent from the household during the last six months of the year. IRC Section 21(e)(4).

Allocation of Tax Liability: Separated spouses who are willing to file jointly should reach a clear agreement as to how the tax liability will be apportioned between them. A logical approach is to prorate the tax liability by using a ratio based on the parties’ separate incomes. In the alternative, spouses may choose to allocate liability based on what each would have paid if separate returns were filed.

Relief from tax liability: Generally, spouses who sign a joint return are each jointly and severally liable for the tax shown on that return, including any tax deficiencies, interest and penalties attributable to the other spouse. The liability exposure should be kept in mind when deciding whether to file jointly or separately.

Potential Joint Liability Relief: A spouse wrongfully exposed to joint liability for deficiencies, interest and penalties may have recourse under an indemnification agreement or under various code provisions. For example: (1) ‘Innocent Spouse’ relief from liability for tax deficiencies attributable to erroneous items of the other spouse (IRC Section 6015(b)); ‘Separate liability’ relief from liability for tax deficiencies (IRC Section 6015(c)); and Equitable relief from liability for tax deficiencies and underpayments (IRC Section 6015(f)).

Helpful assistance can also be found at the IRS Web Site http:/www.irs.gov.

Can I Claim My Child(ren) On My Taxes? Depedency Exemption Entitlement

The Law is clear, the custodial parent is entitled to the dependency exemption and the child tax credit. The custodial parent may sign, or the court may require the custodial parent to sign IRS Form 8338. IRS Form 8338 will waive the custodial parent’s right to take the exemption so that the noncustodial parent may do so.

If there is split custody, rotating custody, or if there is no agreement which establishes who has custody, then “custody” will be deemed to be with the parent who, as between both parents, has the physical custody of the child for the greater portion of the calendar year.

If there is an exact equal timeshare between both parents, then pursuant to the “Working Families Tax Relief Act of 2004,” effective January 1, 2005, the parent who is entitled to the dependency exemption is the parent who has the highest adjustable gross income for the taxable year.

CHECKS AND BALANCES: Focus on the Finances

It is tough to deal with money when you are so emotionally involved with your spouse. However, statistics show, the better you handle your emotions, the better you will be able to manage your money during divorce.

If you find yourself attempting to get even, get it over with or get back together with your spouse, be on guard. These three “gets” will affect your ability to think clearly and act in your own best interest. The financial agreements you make during divorce, will affect you permanently. Moreover, although you are entitled to pursue your legal rights, the judicial system is no place to get satisfaction for your emotional demands.

Research shows that divorce is second only to the death of a spouse in terms of the amount of stress produced. You have to safeguard your sanity and emotional well-being. As you move through your divorce, it will be easy to become overwhelmed with the financial details. Nonetheless, you must make sure that the financial choices you make today will work for you tomorrow. There is an excellent article, entitled, “Avoiding Common Pitfalls.” Click on the link to read about understanding your financial and emotional limits.

Enforcement

Enforcing Family Law Orders By Contempt in California

In general, family law orders and judgments are enforceable by contempt. Disobedience of any lawful judgment, order or process of the court is a contempt of the authority of the court.

Support orders: Child, spousal and family support orders are based on an obligation arising out of marriage and parentage and are imposed by law. They are enforceable by contempt.

Child custody/visitation orders: The court may invoke its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights or violates an injunction restraining relocation with the children.

Attorney Fees/Costs orders: Need-based attorney fees and costs are awardable by statute in marital proceedings. The award is based on a law-imposed obligation and is enforceable by contempt.

Community property division orders: A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt.

Restraining orders/Family Code protective orders: The court may invoke its contempt power to compel compliance with valid protective orders and restraining orders issued in a domestic relations proceeding.

Statute of Limitations: The contempt remedy for noncompliance with a court order made under the Family Code is subject to a statute of limitations. For an alleged failure to pay child, family or spousal support, the contempt action must be commenced no later than three years from the date the payment was due.

A contempt cause of action for nonpayment of support may be broken into separate ‘counts’ for each month payment was not made in full.

A contempt action to enforce any other order made under the Family Code must be brought within two years from the time the alleged contempt occurred.

Facts needed to prove contempt: The facts generally necessary to establish prima facie contempt of a family law order are: (1) rendition of a valid order; (2) the citee’s knowledge of the order and; (3) the citee’s willful disobedience of the order.

Punishment: Contempt punishments for a first time violation is county jail for up to 5 days or 120 hours of community service or pay a fine of $1000 for each count. For a second time violation, the person can be put in county jail for up to 5 days and do up to 120 hours of community service, and pay a fine of $1000 for each count. For a third and subsequent violation, the person can be put in county jail for up to 10 days and do up to 240 hours of community service and pay a find of $1000 for each count.

The Court can also order the person found in contempt to pay attorney fees and costs to the other person.

Child Support

CAN A CALIFORNIA CHILD SUPPORT ORDER BE MODIFIED?

Child support orders are modifiable long after a judgment’s finality. Subject to certain limitations, child support orders are modifiable at any time as the court deems necessary.

The family law court has primary jurisdiction over modifications. Once a marital status/dissolution action has been filed, the family law court’s jurisdiction attaches. Disputes over the modification of child support should ordinarily be heard in the family law action in which the original support obligation was imposed. Many times, parents relocate to different states or countries and in that instance, there is a bases for shift in jurisdictional situs.

Reason for Modification: Generally, courts will not modify or revise a child support order unless there has been a ‘material change of circumstances.’ There are no rigid guidelines for determining when the circumstances have sufficiently changed to warrant a child support modification. The determination is made on a case-by-case basis and may turn on the facts particular to each individual case (such as ability to pay or need).

Ability to pay: A change in either parent’s financial position is not an automatic ground for modification. The Court will examine both parties’ circumstances and will evaluate the circumstances according to statutory factors set forth in the Family Code.

Parent’s increased wealth: The obligor parent’s enhanced wealth often itself will be grounds for increasing the child support level.

Earning Capacity vs. Actual Earnings: The parent’s actual earnings are not always the controlling question when calculating the obligor’s ability to pay. The Court has discretion to consider the earning capacity of a parent as opposed to the parent’s income, so long as it is in the best interests of the children.

Can both parents agree to modify support? The parents may agree as between themselves to increase court-ordered child support payments at any time and under any circumstances. The agreement should be reduced to a writing and signed by both parties.

Can my ex-spouse’s/new mate’s income be considered? Trial courts may not consider the amount of support the income of a parent’s subsequent spouse or nonmarital partner makes except in ‘extraordinary cases.’ For example, new mate income may be considered if child would otherwise suffer ‘extreme and severe’ hardship.

Bottom Line: Child support modification is determined on a case-by-case basis with the best interest of the minor child at the forefront.

Spousal Support

CALIFORNIA SPOUSAL SUPPORT FAQ’S

1. Is spousal support mandatory?

A spousal support award is not mandatory in divorce or legal separation cases in California. Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is earning significantly less than the other spouse or is unemployed. The propriety of a California spousal support award is judged broadly by the parties’ “circumstances” in reference to the standard of living established during the marriage and their respective needs and ability to pay.

The Superior Courts of Los Angeles and Orange Counties have adopted a spousal support guideline for use in setting temporary spousal support. This guideline provides that the obligor’s spousal support is to be 40% of net monthly income, reduced by one-half of the recipient spouse’s net monthly income. If child support is being paid, the guideline level child support is first calculated. Then, spousal support is determined.

2. How is the amount of spousal support determined?

The Courts are bound to consider 14 statutory factors in making a California spousal support order. Some of the factors include but are not limited to: (1) ability to maintain marital standard of living in light of earning capacities; (2) contributions to other spouse’s education, training, etc.; (3) supporting spouse’s ability to pay; (4) “needs” in light of marital standard of living; (5) parties’ assets and debts; (6) duration of marriage; (7) employability of custodial spouse versus impact on children; (8) age and health of the parties and (9) history of domestic violence.

At the trial of the dissolution, the Judge will consider the 14 statutory factors in determining the amount and duration of spousal support.

3. How long will my spousal support last?

The duration of spousal support is closely linked to the length of the marriage. Many attorneys speak of the “rule of thumb” that spousal support will last for one-half the length of the marriage.

The duration of spousal support is left to the sound discretion of the court. In general, where the marriage has lasted more than 10 years, the court will, at the very least require a “reservation of jurisdiction.” This means that, even if there is no current order for spousal support, the wife or husband may come back to court at a future date to request spousal support should the need arise.

4. Do I have to report the receipt of spousal support as “income” for income tax purposes?

The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as “ordinary income.” Thus, it is not uncommon for a negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefits to the obligor spouse.

5. Does Spousal Support awards apply in Domestic Partnership Dissolutions?

Virtually all of the rights and obligations applicable between spouses under California law now apply to registered domestic partners — including spousal support during the partnership and after it is terminated. Accordingly, references herein to “spousal support” should be deemed also to include “partner support.”

Property Division

Should I Sign a Quit Claim Deed Over to my Spouse?

A quick claim deed is also known as a quit claim deed. A quit claim deed transfers whatever interest or title a grantor may have without warranty. Even when a quit claim deed is signed, it does not release the person from the loan.

A quit claim deed gives up ownership of your home and associated rights and responsibilities. It operates to release any interest in a property that a person may have, without a representation that he or she actually has a right in that property.

Couples who are divorcing often use a quit claim deed by one spouse to transfer real property ownership to the other. A quit claim deed is often executed when the property isn’t sold.

Before you sign a quit claim deed during the pendency of your divorce proceedings, you should seek legal advice. You could potentially be transmuting your community property into your spouse’s sole and separate property.

GET OUT! Do We Have To Live Together?

Many couples choose to live under the same roof while going through a divorce. Other couples choose to live separately. Many couples are under the presumption that because they are going through a divorce, one party must move out. This is not necessarily true. Under certain circumstances, one party can be ordered to move out of the family dwelling. The court may order one party to move out regardless of which party holds legal or equitable title or is the lessee. Before an order may be made, the Court must find that the party who will remain in the home has a right to possession of the premises and that the party who is excluded has assaulted or threatened to assault the other party or a minor child of the parties.

If the Court does not find credible evidence presented, then the parties can both reside in the family residence pending dissolution of the marriage. Although it may be difficult, many couples have and are living through it. It may help to read Steven Sack’s book entitled, “What’s Love Got to Do with It: Legal Guide to Marriage, Divorce, Custody and Living Together.”

Divorce

TOP “5″ THREATS YOU MAY HEAR DURING OR IMMEDIATELY PROCEEDING FILING FOR DIVORCE

April 30th, 2007

#1: I WILL QUIT MY JOB BEFORE I PAY ALIMONY/SPOUSAL SUPPORT OR CHILD SUPPORT.

The initial shock or reaction to having to pay child or spousal support can be quite alarming. Many payors have heard horror stories about having to pay extraordinary amounts of support. However, there is a guideline for child support calculations and factors the Court considers in awarding spousal support. Most obligors pay court ordered support given the consequences for not paying. Moreover, if a payor quits his job in an attempt to avoid support obligations, the Court may still hold the payor accountable for their support obligations.

#2: I WILL TELL THE COURT THAT YOU ARE AN UNFIT PARENT AND YOU WILL NEVER SEE THE CHILDREN AGAIN.

Unfortunately, children are oftentimes brought into the middle of their parents’ divorce. Attorneys and Courts are educated about children being used to retaliate, frustrate, or hurt the other parent. Consequently, unless credible evidence is presented concerning a parent’s mistreatment or abuse of a child, the law favors both parents having frequent and continuing contact with the children.

#3: YOU CAN NOT MAKE IT WITHOUT ME, YOU NEED ME.

Divorce can be a frightful reality no matter how long the parties have been married. Oftentimes, one spouse is financially dependent and relies on his or her partner to maintain the majority of the household expenses. Nonetheless, the law takes into account the disparity of income and will allocate the community income equally. The law also gives the supported spouse the time necessary , where applicable, to obtain an education and/or training, in an effort to become self supporting.

#4: THIS HOUSE BELONGS TO ME. I HAVE BEEN THE ONE TO WORK AND PAY FOR IT. I WILL MAKE YOU LEAVE AND YOU WILL BE HOMELESS.

Absent a pre-marital or post-marital agreement, property acquired during the marriage is considered community property. This is true, even if, one spouse may have been employed while the other spouse maintained the home and/or took care of the children. In certain circumstances, even if the home was purchased prior to marriage, the community may have acquired an interest.

#5: NO ONE WILL EVER WANT YOU AFTER WE ARE DIVORCED.

Divorce is a very emotional process to get through. Many hateful and angry words may be expressed by one or both spouses/partners. Now is the time to lean on your supportive friends and family. As the old adage goes, “Sticks and stones may break my bones, but words will never hurt me.” Stay rooted and grounded, there is life after Divorce!