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My spouse is avoiding being served: what can I do?

Tue, 26 Jun 2012 22:12:00 GMT

Oftentimes, one spouse may be avoiding service of the divorce papers with the mis-understanding that if they never get served, the other spouse cannot move forward with the divorce or legal separation. This myth is common. However, the Court is empowered to allow Petitioner to effect service by publication when the Court is satisfied that the Respondent cannot with reasonable diligence be served personally or by mail.

If you know your spouse’s post office address and that his or her mail was being picked up from that box, failure to attempt service by mail will prevent the Court from allowing service by publication. Typically, the Court will require proof that Respondent cannot reasonably be served personally or by mail. The Court may require that a search of databases be made (e.g., voter registration rolls). Oftentimes, a search of databases will require the assistance of a private investigator.

Should the Court be satisfied that Respondent cannot be served by mail or in person, the Court will order the summons to be published in a named California newspaper, or if the party resides out of state, in a named newspaper outside the state, that is more likely than not able to give notice to the party served. The Summons is published once a week for 4 consecutive weeks. Service is considered complete on the last day of publication.

Once service has been complete, Respondent will be deemed served. If Respondent fails to respond within the 30 day requisite period, Petitioner can obtain Default of Respondent and proceed with the divorce without Respondent’s input.

Options For Mortgage Post Divorce

Fri, 22 Jun 2012 14:53:00 GMT

Check out this great article by Michael Hallin, the Senior Loan Officer of Bank of Manhattan in Los Angeles, California.

http://mortgageadviceduringafterdivorce.blogspot.com/2012/06/mortgage-advice-duringafter-divorce.html

Dividing House, Pensions & Debts

Fri, 22 Jun 2012 14:36:00 GMT

Must we divide, dispose of or allocate? Check out this informative article by Family Advocate Here.

Tax Planning During Separation: To file Jointly or Not?

Thu, 10 Mar 2011 01:01:00 GMT

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 .

Establishing Paternity: Who is your Daddy?

Thu, 10 Mar 2011 00:44:00 GMT

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'd 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.

Spousal Support FAQ’s

Thu, 10 Mar 2011 00:36:00 GMT

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.”

Do I need a forensic accountant?

Thu, 10 Mar 2011 00:31:00 GMT

In simple terms, a forensic accountant is an expert who assists the Judicial Officer and legal counsel in understanding specific financial issues. The accountant is skilled in analyzing financial data and related transactions and putting them into context for the case at hand.

The forensic accountant can uncover hidden income/assets, discover fraud, understanding assets and performing an analysis of various documents.

The accountant will usually begin by looking at he couple’s tax returns and understanding how income and expenses are being distributed/allocated. The accountant will want to see bank account statements, credit card statements and canceled checks.

The accountant will usually want documents from several years back.

Once the accountant has reviewed and analyzed the community, he or she will prepare a report. The expert may also provide expert testimony and/or give testimony at a deposition.

The forensic accountant can provide a vast array of significant range and breadth of capabilities in your family law matter. The need for a forensic accountant must be carefully thought through to be certain that it is necessary, taking into account the issues and complexities of the case. Moreover, whether the likelihood of achieving worthwhile results for the client most definitely must be considered.

How do I tell my child about divorce?

Thu, 10 Mar 2011 00:27:00 GMT

Many books have been written about children caught in the middle of their parents divorce and the effect it has on the children. In a recent article written by M. Nueman, he explains how to talk to your child(ren) about divorce based upon the child’s age. Click on the link for the article entitled, “Your Child is Not a Statistic.”

Behind Closed Doors

Fri, 04 Mar 2011 23:18:00 GMT

Behind Closed Doors

Behind closed doors you will never know

The “private” lives that friends don’t show

It happens in the best of places

And shows up first on children’s faces

First, the look of their sad eyes

Then their voice complete with sighs

They don’t talk much nor do they play

You ask them why, but they won’t say

Their bear the weight of parents’ sin

Of daily abuse and anger turned in

They have that look that says, Dont Touch

I’ve had enough, in fact too much

They fight with all to show their power

But while at home they sit and cower

To wait upon their nightly whip

Sometimes from hands, sometimes from lips

It matters not where comes the pain

From stinging slaps or words that shame

‘Cause as they grow in size and age

Their minds still fill with thoughts of rage

And when they wed and parents are

They still bear wounds and have deep scars

That bind them in so many ways

To their past lives which they replay

And on and on the cycle goes

Unless it stops and we can show

That “private” lives in “private” places

Ruin future lives in future spaces

So be not silent, don’t turn in fear

Reach for their hand, give them your ear

With gifts of love, touch their young heart

And the cycle of hate, you’ll surely part

Taxes and Divorce: So How Does It Work?

Tue, 22 Feb 2011 02:56:00 GMT

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

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

Decreasing or Increasing Child Support: Is it Possible?

Tue, 22 Feb 2011 02:51:00 GMT

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.

Hold up . . . Wait before you sign over that Deed!

Thu, 17 Feb 2011 07:06:00 GMT

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.

Dependency Exemptions: Who gets it?

Mon, 14 Feb 2011 03:12:00 GMT

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 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.

However, it is advisable to also look at the Dissomaster printout which calculated the support order in your case. It will set forth in the exemption column who received the credit for claiming the children. This is one way of resolving any disputes over the dependency exemption.