The Best Divorce Litigation Flow Chart on the Internet

My paralegal Cat found this flowchart online recently at the Riverside County Superior Court website.  It shows the decision-making structure that parties to a divorce generally follow while going through their divorce.  I highly recommend looking at this to help demystify the process.

 

Zero Alimony Deduction for a Split Bonus, Tax Court Says | AccountingWEB

I do not think anybody actually likes paying income taxes, no matter what they say. True, the many benefits of taxes include things like roads, police, and even my beloved courthouses, but it is hard to part with a portion of every cent I earn.

In a divorce, child support and spousal support issues have different tax consequences.  In general, a child support payment is considered the paying party’s obligation to support his or her child, which every person in the United States has an obligation to do from their net income after paying income taxes.  Because of this, child support payments are not tax deductible, though dependent children are.

On the other hand, payment of alimony (or, in California, “spousal support”) is considered the sharing of income before the earning party has the opportunity to enjoy it.  Because spousal support is the income of the party who is receiving it, and not the obligation every parent has to help support children, the paying party has traditionally been able to claim spousal support as a tax deduction, and the receiving party must pay regular income taxes on spousal support received.

In this article, a tax court considered whether to allow a paying party to claim deductions to taxable income write off alimony payments made before a court made orders requiring the paying party to pay alimony.  The court made the following conclusions:

To qualify for a deduction, alimony must meet the following requirements:

  • The payment must be made under a “divorce or separation instrument.”
  • The instrument can’t specify terms that the payment is nondeductible and nontaxable.
  • The parties can’t be living in the same household when the payment is made.
  • The payor’s obligation to make the payment must end at the death of the recipient.

In other words, the IRS and tax courts will want a formal written order (even if agreed) that mandates the payment of spousal support before the paying party can deduct alimony payments from his or her taxable income.  Such agreements are relatively simple, and there are forms on the California Courts website that you can use, but they do not always fit what a specific couple needs.  A simple spousal support order should cost relatively little if you need to consult an attorney or a legal document preparer.

Source: Zero Alimony Deduction for a Split Bonus, Tax Court Says | AccountingWEB

Getting along after its over.

This is an interesting article from People magazine about a couple who, after their divorce, gets together for a family picture each year for the benefit of their child.

Experience tells me this couple’s relationship is pretty unusual; however, it certainly sets an example of understanding how your relationship can influence your child’s life.

Whenever I have a person come into my office, there is typically a complaint somewhere in the mix about the behavior of the other spouse. Complaints typically relate to finances, parenting, inattentiveness, substance abuse, poor judgment, and interloping significant others. My client often wants me to get an order that will “make them” be better.

While the orders create an incentive for a party to be better, or at times rearrange parenting time or financial decisions to help protect against known problems, there is very little I can do to change the behavior of the problematic party.  More important, I try to help clients develop coping skills to deal with the other party’s habits.

This is especially so where the conflict between the parties relates to the raising of children. Often times, the differences boil down to a difference in approach or style. When that is the case, even a court will not typically issue orders, and the only thing a parent can do is learn to put up with the differences as best as he or she can.

In the long run, you will have a direct parenting relationship with your ex-husband or wife for however many more years it takes for your youngest child to turn 18 (and graduate from school), and you will continue to have ongoing dealings for other life events (graduations, marriages, grandchildren, etc.) forever. The better you can make your relationship with the other party after your divorce, the better this will make your life.

Vacations and divorces.

University of Washington sociologists have found what is believed to be the first quantitative evidence of a seasonal, biannual pattern of divorce filings. The researchers analyzed filings in Washington state over a 14-year period and found that filing consistently peaked in March and August, the periods following winter and summer holidays.

This is an interesting study by U-Dub, which has motivated us from our long silence to make some observations.

Our experiences are similar to those shown in the study, with some notable differences: We have seen that people come to us seasonally, with divorces coming during January and February, child custody disputes showing up about April or May, and another, smaller swell of divorces and support cases about fall.  Our observations of these seasonal phenomenon are:

  1. “I stayed for Christmas with him/her, hoping that we could make it good for the kids.  It was awful and I just can’t do it again.” This is a — slightly sanitized — summary of the statement that often accompanies our new clients in January.
  2. (a) “Our son/daughter is not doing well in school and we need to change schools for next year” (b) “I need to move for my job, and I want to get that done before school starts next year.”  These are often the explanations we get from our clients in April and May of each year before engaging in a child custody proceeding.
  3. “I was hoping that our family vacation would bring us closer together, but…” We hear something along these lines occasionally with the fall divorce.

What makes our experience different from the data studied at the University of Washington?  Possibly their weather?

Why is Alimony in California so Confusing?

From both sides — the paying party and the receiving party — one of the most controversial and confusing topics in all of California family law is the issue of spousal support.  This article is only one observer’s views about the deep-seated questions about the subject.

So why the confusion?  Why the widely varying outcomes?  What is going on?

The answer, unfortunately, is that spousal support outcomes vary widely because, unlike child support, the issue of spousal support is extremely discretionary, and has no hard-set rules.

Child Support in California

So we have something to compare against, I will first show you how courts calculate child support in California.

Child support in California is determined by a formula that compares after-tax income against the relative custody of the parties.  The formula is right in Family Code section 4055.  The formula looks like this:

CS = K[HN – (H%)(TN)]

With the above variables defined as follows:

CS is Child Support.

K is the amount of both parents’ income to be allocated for child support.

HN = high earner’s net monthly disposable income.

H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children

TN = total net monthly disposable income of both parties.

That TN variable is further defined as follows:

Total Net Disposable
Income Per Month
K
$0–800 0.20 + TN/16,000
$801–6,666 0.25
$6,667–10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN

For two people who have a set child custody schedule, and both work at regular jobs, this is pretty easy to calculate.

Temporary Spousal Support

The first thing I must do is back-pedal a little.  Here in northern California, most courts actually have a formula for calculating “temporary” or “pendente lite” spousal support.  The courts have mostly done this to allow a sum of money to flow from the higher wage earner to the lower wage earner on a temporary basis without having to conduct a time and money consuming trial.  In Sacramento County, the formula works like this:

  1.  Determine child support.  Deduct that amount from the paying party’s income, and set it aside.
  2. Before adding child support to the receiving party, take 40% of the higher wage earning party’s income and subtract 50% of the lower wage earner’s income.

This is pretty simple, and Sacramento County Courts set temporary spousal support orders using this formula every day.

Long Term or “Permanent” Spousal Support

It is when divorcing parties are looking to set long-term spousal support that parties tend to run into the most variation in outcome.  This is because (a) the court has a lot of discretion,  (b) the statute providing for long-term support has a 13 point balancing test that the court uses to determine support (see Family Code § 4320).

That’s right.  A financial issue in family court is determined by a discretionary, subjective, and unequally applied multi-point balancing test.  The worst part is that the court usually does not typically tell the parties in advance which of the 13 points of the test will weigh most heavily.  Trials on the issue of long-term spousal support are often long, arduous, filled with experts, and expensive.  People usually find some amount that is equally displeasing and settling the case.  Desperation often determines the limits of support, rather than a math problem.

What are some of those points in the balancing test, you ask?  Here are a few:

  • Marital standard of living.  This takes evidence of lifestyle and evidence of earnings and spending during the marriage.
  • Each party’s earning capacity.  This accounts not for what you are earning, but what you are capable of earning.
  • Each party’s assets following the divorce.  If the lower income earner has inherited millions of dollars and the higher wage earner gets only half of the home equity, the higher wage earner likely will not have to pay support.
  • Whether one party took time of to raise kids.
  • Whether one party helped the other achieve a specific career.
  • The health and age of the parties.

There are others, of course.  It seems obvious that any trial asking a court to juggle all of these issues would be gruelling.

Non-Trial Means of Resolving Spousal Support Disputes.

There are ways to avoid the financial and emotional drain that a spousal support trial will cost you, though it always takes to willing parties to negotiate a settlement.  Find a lawyer to help you make the best decisions about seeking/resisting and determining spousal support in your case.

Judge to take second look at divorce granted to same-sex couple – The Athens Messenger: News

Same-sex marriage is a fact in California.  If you are married here, you can get a divorce here whether married to a person of the same or of the opposite sex.

Interesting conflicts of law arise when people marry in one state and divorce in another.  Legal truths that we all presume in California change significantly when you move to another state before seeking a divorce.  For example, if you purchase a community property home in California before leaving the state and seeking a divorce in a non-community property state, the means and calculations used to divide the spouses’ relative ownership interests in that property may change drastically.

This case has been pending a long time in Ohi0.  A same-sex couple married in California, but then apparently took up residence in Ohio, where one of the two sought a divorce.  The courts there are now caught in a dilemma: if the state hosting the divorce proceedings does not recognize same-sex marriage at the time of the divorce, does that state have an obligation to recognize the marriage (legal in California) under the “full faith and credit” clause?

The judge on this case is taking a second look.

Judge to take second look at divorce granted to same-sex couple – The Athens Messenger: News.

Art, Collections, and Community Property

I have kids.  Young ones. They exemplify the term, “This is why we can’t have nice things.”  Our art is mostly made by them, or from a local housewares store.

In my career, I have run across several couples with collections of valuable fine art.  Every time, the fine art collection has posed a problem in the division of property.  Here are some examples of the real arguments I have heard about art and other collections:

  • “My parents bought that painting for me as a wedding gift.”
  • “I have always had a deep emotional attachment to that sculpture.”
  • “I was the one who collected all of those fine china plates from around the world.”
  • “I worked in the gallery that sold this artist, and I bought that painting  from the artist himself using my employee discount.”
  • “If it wasn’t for me, she wouldn’t even have known which Matchbox cars to collect.”
  • “He he gave me that AR-15 for my birthday.”

There are two problems with any collection of valuable items, including art, while you are dividing them in a divorce:

  1. They have actual cash value as a collection, and individually.
  2. They form a part of the emotional history of the relationship.

The simple advice in this article from the Wall Street Journal is excellent, but only really works if at least one party comes to terms with the second of these two issues: the emotional attachment to the art or collection.  The toughest part often is in finding an appraiser who can place a reliable value on the collection.  The internet is a great resource to find appraisers for just about any collection.

When you are dividing items from the household, emotional distance is key.  The more intrinsic value you place in an object, the more power you give to the other side.  Find your Zen, find an appraiser, and divide your community property.

Tips for Dividing Art in a Divorce or Death – WSJ.

DIY Divorce: How to get your California divorce started.

Getting a divorce started is one of the simplest parts of the process.  Here is what you need, and how to get it done.

Forms:

The forms required to start your divorce in California are available online for free, and are relatively simple to fill out.  The forms include these:

  • Summons – Family Law
  • Petition – Family Law (for all MARRIAGES) (or Petition – Domestic Partnership in appropriate cases)
  • Property Declaration
  • If there are minor children of the marriage, Declaration Under Uniform Child Custody Jurisdiction Enforcement Act.

Download all four to your computer first, because they will not save with the portions you will need to type in later.

Prep Work:

Make an inventory of the things you know you bought while you were married.  While making that list, try to estimate what everything is worth.  For things like furniture, use “Craigslist” or “garage sale” values.  For cars, use Private Party value from kbb.com.

Filling Out the Paperwork:

The Summons.

Start with the easiest one: the Summons.  To fill out the Summons, put your spouse’s name in the “Notice to” line at the top.  Then fill out your name at “Petitioner’s name” line.  The court will provide the case number when you file everything.

Fill out the bottom of the first page with the address of the courthouse, and the your own name, address, and telephone number at the very bottom.  The second page does not need to be filled out.

Make three copies, or two copies and a scan.  Set the original and the copies aside.

The Property Declaration.

The series of boxes at the top of the first page is the “caption.”  It needs the following information: (a) your name, address, and telephone number; (b) the court’s address; and (c) the names of you (as Petitioner) and your spouse (as Respondent).  As before, the court will provide the case number when you file your documents.

The Property Declaration has instructions on the last page.  This is where your inventory of property comes into play.  Fill it out the best you can.  Your list of property does not need to be exhaustive, so long as you hit the most important things, like the house, cars, investments.  Also, you can lump certain things, like collections, together in one line, like “gun collection” or “women’s jewelry.”

Make three copies, or two and a sacn.  Set the original and the copies aside.

The Petition.

The Petition is pretty straightforward, too.  Fill out the caption like you did in the Property Declaration.  Check the box for “Dissolution of Marriage,” “Legal Separation,” or “Nullity of Marriage.” (I will discuss the difference in a separate article.)

Check the box next to Petitioner for paragraph 1, “Residence.”

Fill out the date you were married for line 2(a).

Fill out the date you and your spouse stopped living as a married couple for line 2(b). (I will discuss date of separation in a separate article.)

Fill out the total duration of your marriage in line 2(c).

If you have no children with your spouse, check the box for 3(a).  If you have children, check the box for 3(b), and list their names, birthdates, ages, and sexes.  At this point, you will also need to fill out your Declaration under Uniform Child Custody Jurisdiction Act if you have kids.

If any of your kids were born before you were married, and you have a voluntary declaration of paternity, then check the box for 3(d).

Under Part 4, check the box marked “below.”  In the space under “Item” write this:

“All property obtained before marriage, after separation, or by gift devise, or bequeath; and any property purchased using the proceeds of the sale of any such property.”

In the space under “Confirm to” write “Petitioner.”

Under Part 5, check the box next to part 5b, and the box next to “in Property Declaration (form FL-160)

Ninety-nine point nine percent of divorces and legal separations are based upon irreconcilable differences.  If that is what is motivating you to get a divorce, then check the box under 6(a)(1) for divorces, or 6(b)(1) for legal separations. If you are asking for annulment, call a lawyer to talk about your case.

Paragraph 7 is where the trickiest parts of the Petition are located.

  • If you have kids you need to check all boxes that describe who you want to have legal and physical custody, and visitation (lines 7a, 7b, and 7c).
  • If you have children born out of wedlock, and no voluntary declaration of paternity, check the box next to 7d.
  • Check the box next to “Respondent” for line 7e
  • Check the box next to “Petitioner” for line 8a
  • Check the boxes for 7g and 7h.
  • If you changed your last name when you married, and you want to go back to your name before marriage, check the box for 7i, and write your full former name in the line at the end.
  • Check box 7j, and write “such further relief as the court deems just an proper” in the area adjacent to that line.

Sign and date the Petition.  Make three copies, or a scan and two copies.  Set them aside.

 Declaration under Uniform Child Custody Jurisdiction Enforcement Act.

If you have minor children with the other party, you must fill this form out.  The caption is filled out just like the other two documents. If you have domestic violence, child neglect charges, a contested adoption issue, or any other legal problems regarding your children, call a lawyer because things will get confusing while filling out this form.

List your oldest child first in Box 3a.  Put all prior addresses going back five years.

Assuming all your children lived with you together at the same address, write the name of your other child in box 3b, and then check the box under his or her name stating the address information is the same for all other children.

On the second page read through everything carefully.  If you can honestly answer “No” to everything under part 4, then check “No.”  If you must answer yes, then call a lawyer.  Same thing about paragraph 5.  If there is an existing Domestic Violence Restraining Order, then call a lawyer.  And same thing with paragraph 6.  If you must answer “Yes,” call a lawyer.

Sign and date this form, too.  As before, make three copies, or one scan and two copies.  Set it aside.

Assembling the final product.

Take the original Petition. Behind that, add the Property Declaration and then the UCCJEA form.  Staple them together.  Make the other two (or three) copies look the same.  Many courthouses require you to punch two holes in the top edge of the document so they can be affixed to the court’s file.  Punch all three copies.

Then staple the summons and use the two-hole punch on it.

Going to Court.

As of the date this article was written, the filing fee is $435.  Bring a check, the originals, and two copies with you down to the family law courthouse. Go to the clerk’s office.  Wait in line.  File your documents, and pay your filing fee.

You just started your divorce process!

5 Divorce Facts That Might Change Your Idea of Splitting Up | World of Psychology

People ask me about divorce statistics all the time.  This article provides most of the answers you could ever need.

5 Divorce Facts That Might Change Your Idea of Splitting Up | World of Psychology.

 

Deployed submariner loses a round in custody battle | Navy Times | navytimes.com

Deployed submariner loses a round in custody battle | Navy Times | navytimes.com.

I have been tracking this case since it started.  The father is a submariner in the US Navy.  That means one or two times a year, he will get into a submarine and disappear for months at a time. He does not see or speak to his family during that time.  It is rough life.  I am glad he is willing to do this job.

He has a daughter from his first wife, and he is remarried.  During the divorce his first wife was convicted of assaulting the daughter.  The courts gave sole legal and physical custody to the father.  He moved to the Seattle area with his daughter and wife.

Last year, the ex-wife asked the court to award her custody of the daughter. The court then started making orders that appear to violate the Servicemembers Civil Relief Act.  One order threatened this deployed submariner and father with sanctions for his failure to appear at a hearing.  Think about this: while deployed, submariners are functionally gone from planet Earth.

Even now, the family court seems to be ignoring the Servicemembers Civil Relief Act.  The father is still deployed on a submarine, and yet the court is entering orders modifying child custody.

I have encountered judges in my own practice who make light of the SCRA.  Since then, I have seen a larger emphasis placed upon the relief the SCRA offers, but this news article is not the only case of a parent taking advantage of the deployed status of a service member.  It is my hope the pending legislation aimed at preventing this kind of result in the future.