Articles Posted in California

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The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney’s fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska’s Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties’ case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

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Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child’s birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child’s biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child’s father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother’s husband is presumptively the child’s father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child’s birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother’s husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

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It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, “marriage” currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse’s income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file “married filing separate” whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can’t have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can’t mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with “married filing separate” filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse’s tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.
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FOX News and other media outlets continue to report that the divorce of Arnold Schwarzenegger and Maria Shriver could be among the most expensive celebrity splits on record.

Some estimates say Shriver could get more than the $100 million Tiger Wood’s ex-wife Elin Nordegren received.Division of marital property in a San Diego divorce, or a divorce elsewhere in California, is supposed to be equal under the state’s no-fault divorce law. In practice, one party to a divorce can end up with significantly more than half the assets for a number of reasons.

What constitutes community property is one potential area of contention. Property owned before marriage and inheritance to one spouse are both examples of separate property. Valuating community property is another area where a San Diego divorce lawyer will focus attention. For instance, is the marital home valued at current market value? After the economic downturn, a couple’s primary residence is often a liability — with more owed on an upside down mortgage than the property could bring at sale.

With Schwarzenegger and Shriver, there are more complications — and more assets — than in many marriages — even celebrity marriages. And, with allegations about Arnold’s infidelity continuing to surface, he may find an unsympathetic judge on the bench. And, with four children and the majority of the earning power, several media outlets have reported child support and alimony could easily top $100,000 a month.

Typical couples should understand the tax implications of alimony and child support as there may be opportunities to move money in one direction or the other. Alimony is treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer. One caveat to keep in mind: Courts are much better about helping you collect back child support than they are about assisting with the collections of back spousal support.

In the case of Schwarzenegger and Shriver, their marriage will be seen as long-term under California law, which means she may collect alimony for an indefinite period of time. A short-term marriage is defined as one lasting under 10 years, which is in part why it’s not uncommon to see celebrity couples split near the 10-year mark.

Other factors worth considering in this split is Arnold’s future income from motion pictures — particularly sequels to movies made during the marriage. The New York Post reported last year that Diandra Douglas — the ex-wife of Michael Douglas — moved to collect on his payday for the making of “Wall Street 2,” claiming her divorce agreement entitled her to a portion of the proceeds.

For most couples, similar concerns often involve retirement accounts or the earning power of an advanced degree — such as a medical degree or law degree — earned during the marriage.
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If you are a fan of Who’s the Boss? star Tony Danza, you may recall that in 2006 he separated from his wife, Tracy. Four and a half years later, Tony Danza has filed for divorce according to People.com.

As a San Diego divorce lawyer, I have had clients in similar situations; specifically, clients who have waited some length of time after separating to file for divorce. Although I do not know the reason Tony Danza personally waited to file for divorce, sometimes parties wait to file for divorce because they are attempting reconciliation. In my work as a San Diego family law attorney, I have been asked how an attempt at reconciliation effects how property is divided, and specifically how an attempt at reconciliation effects how a spouse’s earnings will be characterized by a court, that is as separate property or community property.

Generally, except as otherwise provided by statue, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Family Code section 760. One such statutory exception is that earnings and accumulations of a spouse while living separate and apart from the other spouse are separate property. Family Code section 771.

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It’s official, Kelsey and Camille Grammer are divorced. Reflecting on the divorce process, as well as what is to come, Camille told US Magazine: “I am grateful to my family and friends who have stood by me through this time – I will never forget their love and support. What I most hope is that Kelsey and I can improve our communications and truly co-parent our two wonderful children…”

As a family law attorney, many of my clients face the challenge of co-parenting after a divorce. Sometimes, a court will grant one parent sole legal custody, in which case that parent is solely responsible for making decisions relating to the minor child’s care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment, and treatment of emotional needs. Other times, parents will share joint legal custody. When both parents are responsible for making decisions relating to their child’s welfare, and they need to make those decisions together, challenges can arise.

While some might think that parents inherently know how to co-parent after a divorce, realistically, it’s a learned skill. Think back to when you brought your son or daughter home from the hospital. Over those first few days, weeks and months, you had to learn how to be a parent; you had to learn how to change a diaper, what to feed the baby, and what her different cries meant. In this same way, co-parenting after a divorce is a skill that needs to be learned. You will need to learn how to put your relationship issues aside, and work together for the benefit of your children.

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Why Would Anyone Delay Their Official Divorce Date?

Yahoo News reported that on Thursday, February 10, 2011, Los Angeles Superior Court Judge Hank Goldberg finalized Charlie Sheen and Brooke Mueller Sheen’s divorce, however, the Sheen’s will not be officially divorced (i.e., legally single) until May 2, 2011. AP reported on February 15, 2011, that Christina Aguilera and Jordan Bratman finalized their divorce but the judgment will not become official until April 15, 2011.

In California, there is statutory six-month waiting period before a divorce judgment can be final for the purpose of terminating a marital relationship. California Family Code Section 2339. In both cases, the delay is because the six-month waiting period has not expired. Sheen filed for divorce in November, thus their marriage cannot be dissolved until May. Aguilera filed for divorce in October, thus her marriage cannot be dissolved until April.

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Do you think your spousal support payment is too high? A few weeks ago, the San Diego Union Tribune and the Wall Street Journal ran articles about the never-ending divorce saga of San Diego County’s wealthiest couple, Charles and Linda Brandes. According to Forbes, Mr. Brandes is ranked number 269 on its 2010 list of the 400 Richest People in America with an estimated net worth of 1.5 billion. The San Diego Union Tribune reported that Mr. Brandes income is $16 million per month and he pays $500,000 per month in spousal support to Ms. Brandes.

Some of you may be wondering how a judge determines how much spousal support a person must pay his or her former spouse. Unlike child support, which is generally calculated by a mathematical formula, spousal support is determined by a consideration of factors set forth in California Family Code Section 4320. The trial judge must both recognize and apply each of these factors when setting spousal support.

Translated into understandable terms, the factors include: the income of each party; the marketable skills of the supported party; whether the supported spouse did not work so he or she could tend to domestic duties; whether the supported party contributed to the other party’s education, training, license or career position; the ability of the supporting party to pay spousal support; the needs of each party based on the how the parties lived during the marriage; the assets and debts of each party; length of marriage; whether the supported party can work without interfering with the interests of the children; the age and health of the parties; domestic violence between the parties; tax consequences; a balance of the hardships; whether the supported party can be self-supporting within a “reasonable period of time;” the criminal conviction of an abusive spouse; and any other factors the court determines are just and equitable. That last factor is a catch-all provision, meaning whatever else the judge finds relevant.

When there is an existing spousal support order and one party is requesting a modification of spousal support, there generally needs to be a material change of circumstances since the last order. The court is required to reconsider the same standards and criteria set forth in Family Code Section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order. Although a showing of changed circumstances is necessary to obtain the court’s consideration of a modification of spousal support, it does not ensure that a modification will be granted.
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As reported by NBC SanDiego.com, professional skate boarder Tony Hawk recently filed for divorce in North San Diego County. Hawk filed for divorce from third wife Lhotse Merriam. Hawk and Merriam were married in 2006; they have one child.

Raised in San Diego, Hawk is well known for a videogame series based on his skateboarding. Tony Hawk: Ride, a game which involves riding on a skateboard shaped controller, was launched in 2009. Because the game was launched during Hawk’s marriage to Merriam, one question that may arise during the divorce process is whether any intellectual property rights Hawk may have in the game are community property to be divided in the divorce.

Absent a prenuptial agreement to the contrary, intellectual property rights (e.g. patents, copyrights, trademarks, trade secrets) are property to be classified and, if appropriate, divided in a divorce. In a divorce, property is generally classified as either separate property or community property. Property that is classified as community property is then divided between the spouses.

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