The Differences between Family Law and Other Types of Litigation

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Family law litigation is a unique field.  In other types of litigation, the disputed facts relate to a single event in the past.  In family law, the facts are constantly changing.  Here are some of the bigger differences:

  Civil Litigation: Family Law Litigation:
Issues in Dispute Few (2 or 3) legal issues are in dispute at the same time Many (5-15) legal issues are in dispute at once.
Facts in Dispute Facts are fixed in time (car accident, business transaction) Facts change over time, especially with child custody, business income, etc
Client involvement Client provides documents and attorney almost all other work Client continuously produces updated financial and child custody information
Procedure and process Everything leads up to a single trial or settlement Case can be split into separate trials; conditions change even after the trial
Court hearings Rare, and when required, the attorney usually goes alone Frequent, client usually needs to attend alongside attorney
Trial Either party may demand a trial to a jury No jury is allowed
Attorney’s fees Standard rule: each party pays their own attorney’s fees No standard rule: party with better access to resources may pay all fees
Duties between litigants No special duty exists, except in specific kinds of cases. Each has affirmative obligation to watch out for other’s interests
Attorney Aggressiveness Each party’s lawyer can be as aggressive as he or she deems fit Aggressiveness, if not carefully packaged, can be grounds for penalties

Because of the many moving parts, the personal and emotional ties between the parties, and the complex and ever-changing landscape, family law cases can be difficult and expensive.  For this reason, you should always be looking for the simpler and more efficient way out, while at the same time, working to protect yourself and your family.

Costs of Travel for Unaccompanied Minors

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Children Traveling Alone

Some parenting plans require the parents to fly the children back and forth between two distant places.  What some people do not realize before they start shopping for the cheapest fare is the fact that different airlines charge different fees for minor children to fly without an adult chaperone.  This chart has the unaccompanied minor fee each way for all major domestic airlines in the United States.  It is accurate as of November 27, 2017.

As you can see, Alaska and Southwest are the least expensive.  Unfortunately, Alaska’s service is a little limited for the Sacramento area, and Southwest often has connections between origin and destination cities.

Unaccompanied Minor Information
Fee Nonstop Fee Connecting
Alaska  $25.00  $50.00
Allegiant  No Unaccomp. Minors
American  $150.00  $150.00
Delta  $150.00  $150.00
Frontier  $110.00  $110.00
Hawaiian  $100.00  $200.00
JetBlue  $100.00  $100.00
Southwest  $50.00  $50.00
Spirit  $100.00  $100.00
United  $150.00  $150.00
Virgin American  $25.00  $50.00

Feel free to share this chart with anyone who needs to know the additional charges to fly an unaccompanied minor on a domestic flight.

 

The Best Divorce Litigation Flow Chart on the Internet

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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.

 

The Decline of Marriage Is Hitting Vegas Hard – Bloomberg

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This is an interesting development that has me wondering about career longevity.

Half of Americans older than 18 were married in 2014, down from 72 percent in 1960, according to the Pew Research Center. The shift is more pronounced for the less educated, which is a loose proxy for income: As of 2014, almost 75 percent of women with bachelor’s degrees were married by their early 40s, versus less than 60 percent of women with only a high-school diploma, according to the Brookings Institution.

Source: The Decline of Marriage Is Hitting Vegas Hard – Bloomberg

Due to a steep decline in the number of marriage since 2000, even the undisputed wedding capital of the Western United States (even my parents were married there!) is now seeing a decline in the number of weddings!

Some things just need to be said — by the Court.

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It is always interesting when a high court puts commentary or other unexpected language into their published opinions.  Here is a very recent statement from the Arkansas Supreme Court, as it gives a bit of a tongue lashing to the lower appellate court:

It is unfortunate that this case was certified to our court in its current state. ‘We note that with twelve judges, twenty-four law clerks, and four staff attorneys, that the court of appeals has sufficient resources to spot such deficiencies. In the future, we expect the court of appeals to ensure that the briefs comply with our rules prior to certifying a case to this court.

Source: Supreme Court chides Court of Appeals again | Arkansas Blog

Here are some other classics.  One justice of the Court of Appeals in Michigan writes opinions in rhyme:

We thought that we would never see A suit to compensate a tree. A suit whose claim in tort is prest Upon a mangled tree’s behest; A tree whose battered trunk was prest Against a Chevy’s crumpled crest; A tree that faces each new day With bark and limb in disarray; A tree that may forever bear A lasting need for tender care. Flora lovers though we three, We must uphold the court’s decree.

Affirmed.

Source: Fisher v. Lowe, 333 N.W.2d 67

If you are old enough to remember the annoyingly catchy song, “Barbie Girl” by Aqua, you may have heard that Mattel Toys sued the band for a trademark infringement. The lawsuit was public, noisy, and nasty.  The trial court dismissed the lawsuit before trial, and Mattel appealed.

As the Federal Ninth Circuit Court of Appeals concluded its ruling, it took some time to address the contentious litigation with the following sage advice:

The parties are advised to chill.

Source: Mattel Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002).

And finally, when I was a law clerk in the late 1990s, I ran across this case analyzing the difference between negligent and intentional acts.  This holding will forever be etched into my mind.

The facts are worth noting. Maestas and Castro were occasional drinking buddies who were acquainted through work and softball team activities. On the night of December 5, 1982, they were drinking and socializing in a bar. The evening’s events did not remain subdued and tranquil, however. Epithets were exchanged and fisticuffs ensued. Maestas and Castro were asked to leave the bar premises. Round two took place in the parking lot. Though each claimed the other was the initial aggressor, Maestas lost; his nose and ears were bitten off.

* * *

On May 3, 1984, Maestas filed a civil complaint against Castro in the state district court (CV No. 5456). The complaint sought damages from Castro due to negligence! One is puzzled by the allegation since at least three bites were required to achieve the damage inflicted [. Arguably such activity could be described as gross negligence, but I think the third bite pretty clearly elevates the activity to an intentional tort, however mindless it might seem.

* * *

West American Insurance Company is the issuer of a homeowner’s policy to Castro which protects the homeowner from lawsuits based on the negligent conduct of the policy holder. Thus, mirabile dictu, we now see why Maestas ascribes the loss of his nose and ears to Castro’s failure to exercise the care that a reasonably prudent person would under similar circumstances. Of course, it cannot be gainsaid that a reasonably prudent person would eschew similar circumstances. Thus, the law’s time-honored test of reasonable prudence is inapplicable to the facts presented. After the fashion of William of Occam preference should be given to a test of known quantities: three bites do not a negligence case make.

Source: West Am. Ins. Co. v. Maestas, 631 F.Supp. 1565 (D. Colo. 1986)

Who says appellate court justices are dull?

California Gun Trusts, Part 2

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Part one of gun trusts left you wondering what is a gun trust, how can it help you, and will it be worth it after all is said and done?

Before discussing the benefits of a gun trust, consider these California gun transfer requirements.

  • A firearm may only be loaned to immediate family (parent, child, sibling, grandparent, or grandchild) for 30 days or less.
  • Any loan of a gun to immediate family for longer than 30 days, and any loan of a gun for any period to a person outside your close family, must be registered through a firearms dealer.
  • Any person who receives a gun (e.g., as a gift or by inheritance) from a member of his or her immediate family must submit paperwork to the State of California within 30 days.
  • Any person who receives a handgun (e.g., a pistol) of any kind must first obtain a handgun safety certificate from the State of California.
  • Any violation of these regulations is a crime, punishable by imprisonment of up to four years (though most innocent first-time offenses are misdemeanors).

A gun trust is not a trap for those not versed in legal jargon. It is a legal entity that is created pursuant to state and federal laws. The trust is set up after submitting the proper applications to the ATF for manufacturing (Form 1), transferring (Form 4, 5), and transporting firearms (Form 20). Form 23 will also be required for “responsible persons” to fill out. Who qualifies as responsible persons will be explained later in this article.

Some people simply place their guns into their regular estate plans (wills, trusts, etc.). While this may be possible, new California gun laws make transfers of firearms through traditional trusts and estates risky and unadvisable.  Gun trusts are created specifically for firearms and the situations that may arise with passing one on to your children and heirs.

A gun trust will also help owners navigate all the rules and regulations surrounding firearms in America and especially in California. Among others, a gun trust provides the following benefits:

  1. Transfers firearms from one owner to the next
  2. Prevents accidental felonies
  3. Allows temporary use by multiple trustees
  4. Maintains more privacy
  5. Avoids involuntary sale or surrender of firearms prohibited by recently-passed laws
  6. Avoids probate death
  7. Protects ownership
  8. Avoids court issues (minors, new regulations, etc.)
  9. Avoids long delays or eventual confiscation
  10. Manages risk to all other assets

Where a child inherits a firearm in California after the death of a parent, and no gun trust exists, the child would need to follow each step of both state and federal laws to transfer the gun from the estate to the heirs.  A violation could lead to imprisonment. A gun trust resolves these risks in advance, allowing the transfer of the firearm from one generation to another. A gun trust allows the initial firearm owner to plan in advance how to allow access to the firearms, and how to transfer them upon death to heirs, all without burdening the receiving family members with the unknown risks of receipt of a gun.

Without a gun trust, an owner of a firearm will have to pay a tax to transfer all NFA weapons. Along with the tax, the transfer also used to require the signature of a Chief Law Enforcement Officer (CLEO), which were next to impossible to obtain in some circumstances. However, in 2014 the Obama administration passed Rule 41F eliminating the necessity of the CLEO’s signature. In early drafts of the bill, the original idea was to extend the CLEO certification to even those transfers conducted by a trust. If the bill would have passed at that stage, local law enforcement would have had veto power over all NFA applications.

However, as Rule 41F went into effect, instead of increasing the need for the CLEO certification, it has eliminated the certification all together. A notification is still required to be sent to the CLEO though. Rule 41F has created a new definition of who a trust’s responsible person can be. The new definition is as follows; any member of a trust “who has the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of an NFA item for, or on behalf of the trust or entity.”[1] This added security measure to a gun trust ensures that a prohibited person does not acquire the firearm.

The new rule also included the need to have all trustees send in background checks and fingerprints, complicating the overall process more. Another important fact to note is that gun trusts are different from wills in that they are only through the National Firearm Association (NFA). The trusts must be made in accordance to state and federal laws dealing with the NFA.

With the increase in complexity, it is now even more valuable to have a knowledgeable attorney to aid you in starting and maintaining your trust. When choosing a lawyer to help you set up a trust, it is important to pick someone who shares your passions about protecting your assets, will do everything possible to properly start and maintain your trust, and who is willing to explain the complex matters to you so that your trust is your trust and not a mystery to you.

We can assist in setting up gun trusts for you and your family. Our firm can provide insight to the intricate and messy details that gun trusts sometimes entail, that individuals will not find in online sources while attempting to set up their own.

Keep in mind that a gun trust is valuable to you even if your trustees do not share your passion for firearms, or you move somewhere that has different laws, or you own a firearm that has the potential to be banned in the future. By securing your firearms within a trust you protect those assets from future issues, you protect your trustees (authorized users), you protect your heirs, and you protect yourself.  If you are ready to begin the process of setting up a gun trust or have any questions give us a call or send us an email.

[1] 27 C.F.R. § 479.11

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

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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

California Gun Trusts, Part 1

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California Gun Trusts

Part 1 – History of Gun Regulation

Run. Hide. Fight. That is the advice given to people who are involved in a massacre shooting. Run if you can, hide if necessary, and fight if you must. No one should ever be in the situation where “run, hide, fight” is reality, but the fact that these situations do exist brings out a polarizing raft of opinions about self-defense, gun violence, and constitutional law. Recent broadly publicized and horrific massacre shootings have thrust this issue before many state legislatures, causing gun regulations increase immensely over the last several years, especially in California.

For more than 100 years, the United States Supreme Court has stated the Second Amendment of the United States Constitution specifically allows individuals to possess firearms.  While a spectrum of opinions and perspectives about gun ownership in America exists, news and common experience focuses on a sharp division between activists for gun rights and activities for gun safety.  This sharp debate makes gun regulations some of the most scrutinized in America.

Simple firearms date as far back nearly 700 years.  About four hundred years later, the United States sprung into life, and a short 15 years later, congress enacted the Second Amendment. American states began regulating firearms shortly after the civil war.  It was not until the 1930s that the United States government began enacting firearms laws that applied to the entire country.

  1. The National Firearms Act of 1934 (NFA), also known as Title II of U.S. Federal Firearms Law, was written to impose taxes on the transfer of both machine guns and short-barrel firearms, including sawed-off shotguns. When drafting this law, U.S. Attorney General Homer Cummings and his staff wanted to avoid violating the Second Amendment. Instead of outlawing guns, the NFA imposed only taxes and taxes for noncompliance. [1]
  2. Gun Control Act of 1968 (GCA), also known as Title I of U.S. Federal Firearms Law, imposed licensing and regulation on the firearms industry.  The GCA established new firearm crimes, and prohibited the sale of firearms and ammunition to felons and other prohibited persons. The GCA was signed by President Lyndon B. Johnson on October 22, 1968 in reaction to the assassination of President John F. Kennedy, Martin Luther King Jr., and U.S. Senator Robert F. Kennedy. [2]

Both the NFA and the GCA are currently enforced by the Bureau of Alcohol, Firearms, and Explosives (ATF). The ATF is a law enforcement agency in the United States’ department of Justice that deals with violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts or arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products.[3] The ATF continues to have a strong interest in firearm issues in the United States, recently prosecuting eight individuals for firearms crimes.

Throughout the years since the first firearms, states have changed regulations to best suit their own evolving situations and interests. California has some of the more stringent regulations and laws related to the ownership of guns, enacting several new regulations within the last year.

Most recently, California Proposition 63 was approved, which created the following new regulations:

Jan. 1, 2017-

  1. Prohibit false reports of lost or stolen firearm.
  2. Prohibit, with exceptions, loan of guns to anyone outside immediate family.
  3. Revise definition of “assault weapon” to prohibit the use of a detachable magazine.
  4. Require all people who owned an assault weapon under prior definition, which had a detachable magazine, to register the firearm before January 1, 2018.

July 1, 2017-

  1. Require gun owners to report loss or theft of firearm within five days.
  2. Prohibit magazines with capacity exceeding 10 rounds

Dec. 31, 2017-

  1. Deadline to register previously lawful “assault weapon” with detachable magazine.

Jan. 1, 2018-

  1. Require all sales of ammunition to be done only through a licensed individual or company.
  2. Require gun owners to obtain state permission before manufacturing or assembling firearm.
  3. Prohibit importation of out-of-state ammunition without a licensed vendor.

Dec. 31, 2018-

  1. Deadline to mark serial numbers on firearms.

July 1, 2019-

  1. Californians must undergo background check to buy ammunition.

With these many layers of gun laws, it seems a person can never own or buy a gun without unknowingly becoming a criminal. From the initial gun regulations of the NFA, to more modern and stricter state regulations, it is becoming almost more of a hassle, especially to Californians, to own a gun.

And even worse, what happens if a California wants to leave a gun to his heirs after his or her death.

The above list of new regulations is a good reason an owner of a firearm should invest in a gun trust. What is a gun trust? Is it part of a will? Or estate planning? Is it a trap to get more money from a gun owner?  These questions will be answered in next week’s blog post.

[1] https://www.atf.gov/rules-and-regulations/national-firearms-act

[2] http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/gun-control-act-1968

[3] https://www.atf.gov

How To Keep A Divorce From Wrecking Your Finances

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This is an interesting new technology that claims to eliminate a lot of the legal and emotional turmoil of a divorce.  I am interested to see whether it gains any popularity.

Divorce is always sad, but when it turns ugly, it’s terrible. You may remember The War of the Roses, the dark comedy where Kathleen Turner and Michael Douglas start out as a perfect couple and end up destroying their possessions — including their luxurious house and cars — because they can’t agree on who gets what. That movie is unfortunately hitting home for plenty of boomers and Gen X’ers.

Source: How To Keep A Divorce From Wrecking Your Finances

Getting along after its over.

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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.