Q&A: Children out of Wedlock - Friday, December 11 2009

• One-third of the children born in the United States are born out of wedlock. • Three-fourths of children born to teenagers are born out of wedlock. • The law creates rights and duties for parents who have a child born out of wedlock. Q: What significance is there in placing the father's name on the birth certificate? A: If it is without the man's consent, it is of no significance. If it is with his consent, it is some evidence of paternity, but does not establish paternity. The law states that the name of the father should not be entered without his consent.   Q: Where the parents are in agreement, is there a simplified procedure for establishing paternity? A: Yes. This can be accomplished by signing a voluntary acknowledgment of parentage and having it witnessed. The statement must also contain the social security numbers of the parents. This voluntary acknowledgment of paternity can be used as a basis for seeking a child support order without further legal proceedings to establish paternity. This acknowledgment does not establish an obligation for child support. Child support can only be established by a court order or administrative order by the California Department of Child Support Services (DCSS).   Q: Must a child born out of wedlock be given the father's last name to receive benefits a child would be entitled to, such as Social Security, upon the death of the biological father? A: No, but paternity must be established in court proceedings, or by a paternity acknowledgment.   Q: May a father bring court proceedings for custody of the child? A: Yes. In law there is no gender bias in favor of the mother. The child's custody is determined on what is in the best interest of the child. If the father shows no, or little, interest in the pregnancy or delivery, does not contribute to the pregnancy and birth expenses, does not contribute to the support of the child, and does not attempt to visit the child; he will have virtually no chance of gaining custody.   Q: Is a father of a child born out of wedlock entitled to visitation? A: Yes. He may obtain a court order for visitation.   Q: How much visitation will the father of a non-marital child receive? A: The same as the father of a marital child, which is usually alternating weekends, a "dinner date" every two weeks, alternating holidays and at least two weeks of vacation time.   Q: How is paternity proved? A: The usual method is by DNA testing. These test results can pinpoint if a man is a child's father with better than a 99 percent likelihood.   Q: How much child support will the court order? A: In California, child support is calculated by a computer program that processes financial information about the parents to determine child support.  There are 3 main factors the program considers:  Income available for support, the number of children, and how much time the children spend in the care of each parent.  While gross income numbers go into the calculation, the program wants to base support on net income so tax information such as tax filing status, number of exemptions, tax deductions like mortgage interest and property tax are considered in the calculation.  The program also considers the cost of health insurance, mandatory retirement contributions and union dues.  If a party is paying child support for children of a different relationship that is also considered before the number is calculated.  The typical program is called Dissomaster.   There are others, Supportax, and The Department of Child Support Services has its own calculator on its website, https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator

Q & A: What Can I do to Prepare for My Divorce? - Friday, November 5 2010

Q:        What type of documents should I gather in preparation for the divorce? A:        In many, if not in most, marriages the parties are not equally knowledgeable about the family’s finances. In some marriages one of the spouses knows virtually nothing about the family’s finances. The simple instruction I give to the less knowledgeable spouse is to gather any documents that have a dollar sign and numbers on them, that is, all financial documents. If these financial documents will be missed by your spouse, you should have them photocopied and replace the originals to their original place. The copies should be removed from your home and stored where your spouse will not find them, for example, at the home of a friend. Do not store the documents in the trunk of your car. Q:        What are the important documents to collect? A:        1)         Income Tax returns, and ideally this should be for the three most recent years.             2)         Pension/ retirement/ 401K plan data. If your spouse’s retirement plan is through an employer, the employer is required to annually report on the financial status of the plan. A pension plan is often as valuable an asset as the residence.             3)         Credit Card statements, and ideally for about the past twelve months. Credit card charges frequently will show the financial lifestyle of the couple and their financial lifestyle may come into play in the divorce. Q:        My husband has his own business. What can I do about gathering documents from his business? A:        If you do not have access to the place of business and the financial records there, there is nothing you can do about obtaining copies of financial records before the divorce proceedings start. Q:        Where do I look for “hidden” records? A:        One of the frequent hiding places is the trunk of the car and another is a locked briefcase, but the key to the briefcase may be on his key ring.             The computer has become a treasure trove of “secret” information, especially information about an affair. From what I have experienced in my practice, where there is an ongoing affair; there is likely to be evidence of it in email communications. Email communications are, however, legally and technically tricky. Before spying on your spouse’s email communications, you should consult with your lawyer to make sure you are not breaking any laws. If you cannot readily view and print the emails, it does not mean that they are not there. If you have a strong hunch they exist you could hire a forensic computer technician. Q:        How much will I be advantaged by gathering financial documents before the divorce proceedings start? A:        Some, but you usually should not be handicapped if you have been able to obtain no documents, or very few.  The reason is that after the divorce proceedings are started you are entitled to “discovery” which includes (1) written interrogatories (questions), which your spouse has to answer in writing under oath. (2) Document production by which your spouse is required to produce documents for inspection and copying. (3) If necessary, because of your spouse’s lack of cooperation, or in order to verify the data your spouse has given, the original sources (for example, banks, brokerage accounts, etc.) can be subpoenaed for original documents. (4) Depositions. A deposition is held in the office of your lawyer. Your spouse is required to attend and answer questions and answers are transcribed by a court reporter.

Cohabitation - Friday, November 6 2009

Facts and statistics are emerging about cohabitation. Cohabitation in recent decades has emerged as an important emotional and economic institution, both as a predecessor to, and often as a substitute for marriage. This writing takes up some of those facts and figures.   ·        50% of women aged 15 to 44 had cohabitated at some point.  1   ·        Among those currently cohabiting, the vast majority expected their cohabitation to lead to marriage.  2   ·        Most cohabitations do not end in marriage, but most marriages are preceded by cohabitation. In the early 2000’s, 59% had cohabitated with their future spouse before the marriage.  2   ·        Cohabitation with an intended spouse is even more than common among those who have previously divorced, with 75% of those remarrying in the early 2000’s having cohabited before the marriage.  2   ·        USA couples who cohabited prior to the marriage historically have been more likely to divorce than those who did not cohabitate.  2   ·        I have seen no studies confirming it, but from what I have observed, it seems that cohabitation is in part related to the fact that people are marrying at a later age.   ·        Speaking of a later age, related to cohabitation, cohabitation by senior citizens may be economically driven. When a retired man and a retired woman each receive social security benefits, if they marry, total social security benefits will drop. It makes economic sense for some of these couples to live together, but not to marry.   1.   2002 National Survey of Family Growth. 2.   Marriage and Divorce: Changes and their Driving Force, by Betsey Stevenson and Justin Wolfers.

What Your Spouse May Say - Friday, November 6 2009

“Let’s use one lawyer. It will be cheaper.” Meaning:  you will think we are represented by one lawyer, but actually the lawyer is my lawyer and will give me the advantage whenever he can.   “You have hired the most expensive lawyer in San Diego County. Fire him before he eats up all my assets.” Meaning:  This lawyer is reputed to be tough. Get rid of him and hire a patsy.   “I cannot afford to give you child support and everything else you want. I’m going to have to go for the kids.” Meaning:  He probably stands a snowball’s chance in hell of obtaining custody, but that does not stop him for suing for the custody of the kids. He is using custody of the kids as leverage so you will lower your financial demands. The fact is he can no more afford a contested custody trial than you can.   “I am going to drag your boyfriend/girlfriend into the case.” This is one of the realities of a divorce. If you are involved with someone else, that person may become involved in the divorce case. “Fault” like being involved with someone else, does not, as a matter of law, have any impact on the financial settlement and is not relevant in regard to custody of children unless the extracurricular activity has had a negative impact on the children. The reality is the extramarital affair is often attempted to be used as leverage in divorce settlements.   “This divorce is going to hurt the kids.” This is true, divorces do hurt children. Probably the leading authority on the effect of divorce on children is Judith S. Wallerstein. She has written that divorce impacts on children even long after they are adults. If the parents can “stay together for the sake of the children” and play it so that children are not aware of the lack of affection, this is better for the children. It is, however, a rare couple who can pull this off. You must decide whether you and the children would be better off with a divorce. You have a duty to your children, but you also have a duty to yourself to have a life. You must weigh the pros and cons.   “I am going to drag this case out forever. By the time you get your share of the property you will be collecting social security.” This is not true. Most divorce cases are settled within six months from the time they are started. Rarely, in about 5 percent of the cases, there are significant contested issues that have to be tried: Child custody, complex property issues or maintenance issues, and it may take two years to take the case to trial. IF there is an appeal, it may take perhaps another year.   “This case will bankrupt both of us.” This is a possibility. You might end up liquidating your assets or borrowing against them and going into debt on account of a bitterly fought divorce. It has been said, and it is true, that a bad settlement is better than a good trial.

Christmas Visitation with Children - Monday, December 6 2010

Q:        Why are the courts crowded in the days before Christmas with parents seeking court orders for Christmas visitation? A:        As a secular matter Christmas is a children’s holiday. Christmas is the time for family gathering, the time for gifts, and largely gifts for children. A well drafted marital settlement agreement, or divorce judgment, should specify the division of the days of the Christmas holiday between the divorced parents, or the non-marital parents. Sometimes the visitation provision in the marital settlement agreement or judgment does not specifically address the Christmas holiday, so it is up in the air. Also, during the pendency of a divorce and custody proceeding (before the final judgment) there will usually be a temporary custody and visitation order in place, however, often it does not address the Christmas vacation. For these reasons judges are inundated with applications for Christmas vacation orders in the week or two before the holiday. Q:        What type of Christmas visitation order do you recommend? A:        Most families have a tradition of celebrating the holiday and opening gifts either Christmas Eve or Christmas Day. The gift opening should be whenever the extended families of the mother and father open gifts. If the celebration for each family is at different times, each parent should have visitation at their family’s chosen time. If both families celebrate at the same time, for example, on Christmas Eve, then the parents should have the children on Christmas Eve and Christmas Day in alternating years. Q:        What about the balance of the Christmas holiday? A:        Usually, it is equally divided between parents. Q:        Where should the children be overnight on Christmas Eve? A:        For small children the opening of gifts is exciting and the child will usually stay up past bedtime. It is not good for the child, when the child has already been awake past bedtime, to transport the child for visitation. The better plan is for the child to stay in the same place overnight and begin Christmas Day visitation with the other parent early on Christmas Day. Q:        What about Christmas church services? A:        The plans made for dividing the Christmas holidays should respect the family traditions of attending Christmas church services, but it should not result in one parent having the children both Christmas Eve and Christmas Day morning unless the parents agree. Q:        Is there a need for a court order regarding Christmas visitation? A:        Unless you and the other parent get along extraordinarily well (in which case you probably should not have split or been divorced) a court order is necessary. You usually cannot enforce visitation based on an agreement between parents. Only court ordered visitation is enforceable. If you need a court order, you should alert your lawyer now.

Q & A: Numbers Count in Divorce - Monday, November 8 2010

Q:        Divorce by numbers?  You make it sound like a game or a business. A:        It is hardly a game, but after the tears and anger, and after resolving what will happen to the children, it is very much like the dissolution of a business partnership, which has assets and incomes.   Q:        What are the numbers involved? A:        All of them. Numbers have to do with the economic aspects of the marriage.  It is not unusual for a spouse who is consulting an attorney to be almost totally unknowledgeable about the incomes and assets of the parties. And this is not a man-woman thing.  As often as not, it is the woman who controls and attends to the finances of the family. Sometimes I ask one of these unknowing persons if they signed a joint income tax return. The answer is yes, but he or she did not read what was signed.   Q:        At what numbers should I be looking for if a divorce may happen? A:        The primary document is the income tax return. It will tell you the amounts of employment income, and income from other sources. The tax return will also show if significant assets, including stock, were sold, and if assets earned income (for example rents, dividends, or interest). Most people keep their tax returns for at least seven years. The is because the limitation on the IRS for a claim of underreporting income is six years and the longest the IRS has to review a non-fraudulent claim is seven years. You should also know where the income tax returns (and other important documents) are kept. If, however, you are contemplating a divorce in the foreseeable future, you should make copies of the last three tax returns and store the copies of the tax returns someplace outside the home.   Q:        How do I keep track of the numbers (the value) of my spouse’s retirement plan? A:        Federal law requires employers to make payroll deductions for a retirement plan and to give their employees annual statements showing what is in the pension plan. You should ask your spouse to share these with you so you are knowledgeable.             Most retirement/pension plans have death, or surviving spouse benefits. This allows the employee-spouse to opt to take a somewhat smaller amount upon retirement, but in the event the employee-spouse predeceases the non-employee spouse, then the retirement plan will continue giving the non-employee spouse benefits, although in a smaller amount than the employee-spouse was receiving. This is an important benefit and especially for a woman because she will statistically outlive her husband if they are the same age. Statistically women live six to seven years longer than their husbands. If you are the non-employee spouse, work at assuring you have surviving spouse benefits.  Lawsuits have been brought over pension plans because the employee-spouse, who was formerly married, forgot to cancel the surviving spouse benefits to the former wife, and replace the new wife for those benefits.   Q:        In the event of a divorce, what happens to assets I do not know about? A:        If you have a suspicion your spouse may be secreting assets (or sources of income), it is a matter of your divorce lawyer conducting a thorough investigation (discovery). The judge simply cannot divide an unknown asset. If the asset is fraudulently concealed from you at the time the divorce judgment in entered, you may be able to have the property settlement vacated so the disposition of the newly found asset may be adjudicated, but there is generally a two year limitation for bringing proceedings to vacate the judgment. The time during which the asset was fraudulently concealed can, however, be excluded in the computing period.

Beware Of The Relocated Spouse - Thursday, August 20 2009

With the uncertain economy many people are moving out of California.  In the divorce world this is significant when children are involved.  We are hearing from more and more clients that one parent proposes leaving the state, with the children, to relocate closer to family and look for a job.  The other parent might move at the same time or stay behind to continue to work at an existing job while the relocated parent looks for work.  In both situations we have seen the following:  the stay behind parent decides not to move or one parent decides they do not want to live closer to family after all.  In these cases child custody and visitation issues are complicated if the children have been relocated to the new state (or county) for more than 6 months.  In that instance, jurisdiction over the children my rest with a court in their new state and the stay behind/moving back parent is faced with litigating custody and visitation issues in the other state.  Worst case scenario, the moving parent received an unopposed move away based on the initial agreement of the parents.  6 months is not a long period of time and the stay behind/returning parent needs to be prepared to file the appropriate action in court, should the relocated parent try to stay away with the children.

Q & A on the Removal of Children from California - Thursday, August 27 2009

Questions and Answers on the Removal of Children from California   Q.  If, by court order, I have sole custody of the children, do I need a court order to move the children out of California?   A.  Yes.  Sole custody does not give you sole authority to make decisions about your children. You must still obtain a court order to remove the children.   Q.  If I have joint custody can I block removal of the children from California?   A.   No.  Not on the basis of having joint custody.  Joint Custody does not give you veto power.   Q.  Is a court order always required in order to permanently remove children from the State of California?   A.  Yes, unless the original marital settlement agreement (incorporated into the divorce judgment) gave you permission to remove the children in the future.   Q.  What is the basis of the court allowing children to be permanently removed from California?   A.  The best interest of the children.  The California Supreme Court in the LaMusga case articulated specific factors the court should consider in a move away case:  (1) the children’s interest in stability and continuity in the custodial arrangement; (2) the distance of the move; (3) the age of the children; (3) the children’s relationship with both parents; (4) the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; (5) the wishes of the children if they are mature enough for such an inquiry, be appropriate; (6) the reasons for the proposed move; and, (7) the extent to which the parents currently are sharing custody."   Q.  I remarried and my new (husband or wife) has a significant career opportunity which requires a move to another state.  Will the court allow me to take the children out of state?   A.  Yes, if you build a good case.  The new career/better economic opportunity move as a basis for wanting to move the children out of state is a typical reason for a request/motion for removal.  Courts have held this is a good faith reason to want to move.  However, the court must consider all of the LaMusga factors before they grant or deny the move away request.   Q.  If the children are removed from California, what sort of visitation can I expect?   A.  The factors from the LaMusga case include:  (1) “the children’s interest in stability and continuity in the custodial arrangement”; (3) “the children’s relationship with both parents”; and, (7) “the extent to which the parents are currently sharing custody.”  Thus, the custodial parent should offer liberal visitation, or at least a schedule that keeps time with the other parent as close to the same as possible.  What happens when there is a move, that instead of frequent visitation (for example alternating weekends), the noncustodial parent will receive longer blocks of visitation?  If I am representing the visiting parent, I will count the number of days of visitation the visiting parent has per year and attempt to obtain the same number of days, but in long stretches.  This ideal, however, can seldom be achieved because there simply is not enough non-school time to allow it.  What is typical is having the children on holidays when it is a three day weekend, a substantial part of Thanksgiving, Christmas and spring breaks and a substantial part of the summer.   Q.  What can I do to convince the court there should be a move?   A.  (1) There should be a good economic reason, that is, to show that the children’s economic condition will improve by the move.  (2) You should gather evidence (often available on the Internet) of the quality of education in the new community.  Also, if the children are involved in extracurricular activities in California, the type of such activities which will be made available to them in the new community.   Q.  Does the child’s preference in regards to removal count?   A.  Just as in custody cases, the court should consider the wishes of the child, providing the child has a sufficient mental capacity to make an informed and intelligent choice and the choice is consistent with the child’s best interests.   Q.  Who pays for transporting the children for visitation?   A.  There is not a rule.  Where, however, the move gives the custodial parent a substantial economic advantage, an argument can be made that the custodial parent should bear the cost of transporting the children for visitation.   Q.  Do these rules regarding removal of children apply to non-marital children where the other parent has visitation?   A.  Yes.  The same rules apply to the move away request for non-marital children as apply to the child of divorced parents.   If you are facing any of these issues you should call me at 858-793-7700 to schedule a consultation.

Q & A: International Law Regarding Divorces - Thursday, January 28 2010

Q:        Why a Q & A on International divorce law? A:        I receive a lot of questions about International divorce law.  I think this is the product of San Diego’s location being situated so close to the Mexican border. I also believe people read a lot about foreign divorces in the newspaper and these articles generate many questions.   Q:              Are the grounds for divorce in other countries different than they are in California? A:        Yes. Below are illustrations in regard to some of our neighbors in some countries where Americans frequently visit. Mexico: There are 20 grounds for divorce, all which are fault based, except for mutual consent, and the separation of the spouses for more than two years.   Canada: The grounds for divorce are “breakdown of the marriage” which is established by proof of adultery, cruelty, or being separated for one year.   England and Wales:   The sole grounds for divorce is the irretrievable breakdown of the marriage, which requires proof of adultery, or that the parties have lived apart for a continuous period of at least two years.   Germany: The only grounds recognized is the “breakdown of the marriage.” This requires proof that the spouses have lived apart for one year and both spouses petition for the divorce, the defendant consents to the divorce, or that the spouses have lived apart for three years. Q:                 Are there practical, non-judicial steps to prevent international child abduction? A:        Yes. ·          Take and hide the child’s passport, but many foreign consulates in the United States will issue a new passport, or other travel authorization, to nationals of their own country if the national claims that the passport has been lost or stolen. ·         The law in many countries bars the issuance of a passport to a child without written consent of both parents; however, such laws may be evaded by forging the other parent’s name, by bribery, etc. ·         Submit a written request to the U.S. Department Office of Children’s Issues to enter the child’s name with the Children’s Passport Issuance Alert Program.

“Innocent Spouse” Income Tax Relief - Wednesday, December 1 2010

Q:        Are there any risks to filing a joint tax return with my spouse during a divorce? A:        Yes. There is risk anytime you file a joint tax return. When you file a joint tax return with a spouse, you are agreeing the IRS can hold you and the other filer jointly and severally liable for the tax due, or any tax that may become due if there are mistakes or misrepresentations on the tax return.   Q:        What does joint and several liability mean? A:        If you and your spouse are jointly and severally liable for a debt, it means the lender can seek the entire payment from either debtor. For instance, if there was a tax liability of $10,000, the IRS could attempt to collect the entire amount from either or both debtors, but could only collect the total amount once. The IRS will not make a determination of fault or allocate the debt between the two taxpayers.   Q:        If I signed a joint tax return with my spouse, is there anything I can do to avoid liability for his or her errors or misrepresentations? A:        There are limited circumstances where a taxpayer can avoid joint and several liability for tax resulting from a jointly filed tax return. The Internal Revenue Code refers to such protection as “Innocent spouse relief.”   Q:        What is Innocent spouse relief? A:        Innocent spouse relief allows one spouse, the “innocent” spouse, to ask the IRS to hold only the other spouse liable for tax resulting from a jointly filed return. There are several types of innocent spouse relief that apply in different situations.   Q:        What is the main type of Innocent spouse relief? A:        Most people seek “classic” Innocent spouse relief. Innocent spouse relief, or what is sometimes referred to as “classic” innocent spouse relief, allows the requesting spouse to avoid liability for an understatement of tax if all the requirements are met. In order to obtain this relief, the taxpayer seeking relief has to show 1) a join return was filed, 2) there was an error on the tax return attributable to one individual signing the tax return, 3) the taxpayer seeking the relief did not, and had no reason, to know there was an understatement of tax, 4) given all the facts and circumstances, it would be inequitable to hold the spouse liable for the tax, and 5) the request for relief is made within two years of the time the IRS began making efforts to collect the tax. In particular, classic relief is only available for understatements of tax, i.e. an erroneous or fraudulent misrepresentation that makes it look like no tax is due and not when tax is shown due, but not paid.   Q:        How does the IRS determine whether holding me liable is equitable or not? A:        The statute directs the IRS to consider all the facts and circumstances. Under regulations issued by the IRS, the IRS will consider 1) whether you are now divorced or separated, 2) whether you would suffer hardship if required to pay the tax, 3) whether you were abused, though the abuse did not amount to signing the tax return under duress, 4) whether you knew or should have known about the understatement or underpayment, 5) has the liability been apportioned in a divorce or legal separation proceeding, 6) to whom the liability is attributable, i.e. is there a deficiency because of your income or your spouse’s income, 7) whether you benefitted from the error or underpayment, and 8) whether you have made efforts to comply with tax-laws in subsequent years.   Q:        Will my spouse find out I am seeking innocent spouse relief? A:        Yes. The IRS is required to notify your spouse if you seek innocent spouse relief. Your spouse will also be given an opportunity to provide information, documents, or other evidence for the IRS to consider.   Q:        What if the IRS denies my application for innocent spouse relief? A:        You may appeal the IRS’s determination. In order to appeal, you must file your appeal with the U.S. Tax Court within 90 days.   Q:        Shouldn’t I be entitled to innocent spouse relief if my spouse forged my signature on the tax return? A:        While you should be entitled to relief, it would not be innocent spouse relief. Other provisions of the Internal Revenue Code address returns signed under duress or where the signature on the return is fraudulent.

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