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December 2006

Man From Sudan Forced To Marry a Goat

From BBC Africa BBC Africa Link
A Sudanese man has been forced to take a goat as his "wife", after he was caught having sex with the animal.

The goat's owner, Mr Alifi, said he surprised the man with his goat and took him to a council of elders.

They ordered the man, Mr Tombe, to pay a dowry of 15,000 Sudanese dinars ($50) to Mr Alifi.

"We have given him the goat, and as far as we know they are still together," Mr Alifi said.

Mr Alifi, of Hai Malakal in Upper Nile State, told the Juba Post newspaper that he heard a loud noise around midnight on 13 February and immediately rushed outside to find Mr Tombe with his goat.

"When I asked him: 'What are you doing there?', he fell off the back of the goat, so I captured and tied him up."

Mr Alifi then called elders to decide how to deal with the case.

"They said I should not take him to the police, but rather let him pay a dowry for my goat because he used it as his wife," Mr Alifi told the newspaper.


Great News For us Bloggers

From BBC website comes this great news for bloggers.

"Bloggers and US internet providers cannot be liable for posting defamatory comments written by third parties, the California Supreme Court has ruled.
To read the case

It followed the case of San Diego woman sued after posting allegedly libellous comments online about two doctors.

Some of the internet's biggest names including Google, eBay and Amazon have supported a woman in a US legal battle that may save them from libel cases.

The judges said the ruling would protect freedom of expression.

'Disturbing implications'

Overturning a decision by the San Francisco appeal court, the court ruled that people claiming they were defamed online could now only seek damages from the original author of the comments - and not the website which re-posted it.

The court ruled that that Internet Service Providers were protected by US Federal law that said providers of chat rooms or news groups are not considered the publishers of information furnished by others.

"The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications," said Associate Justice Carol A. Corrigan.

"Nevertheless ... statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended."

The lawsuit involved a health activist who posted someone else's letter on her web site. The subject of the letter sued the activist - as well as the author - for libel.

Internet service providers have long argued that, like telephone companies, they were "common carriers" who could not be subject to libel laws."


In Re Marriage of Geraci

Case law:In re Marriage of Geraci - filed November 20, 2006, Second District, Div. Seven--Read case here


Where husband acquired residence as his separate property and later razed the structure and rebuilt the residence completely prior to marriage, and where parties refinanced or took out home equity loans on several occasions during the course of the marriage, but husband did not present any evidence as to how the rebuild was financed or of how much equity he had in the property at time of marriage, trial court did not abuse its discretion in concluding that parties’ pretrial settlement regarding the division of the house's sales proceeds was the best evidence of each side's respective interest. Trial court erred in treating business began by husband during marriage--and continued by him after separation--as a general partnership between husband and wife, thereby entitling wife to half of the profits earned post-separation, where it was undisputed that business was operated solely by husband and had no capital assets, and that wife had no involvement beyond fact that husband listed her on the fictitious business name statement. Monetary sanctions for breach of fiduciary duties must be reconsidered where predicated on erroneous ruling that parties were partners in husband's business. Award of spousal support to wife was an abuse of discretion where trial court generally cited statutory factors but failed to explain how evidence related to each factor and how each factor was weighed in reaching amount, and where trial court apparently failed to take into consideration wife's special skills and fact that she was cohabitating, which presumptively reduced her need for support


Why Wallerstein was wrong on relocations

An interesting academic article arguing that empiral evidence shows that children whose parents relocate are disadvantaged.  Article summary:
    "Relocation cases, in which a divorced parent seeks to move away with the child, are among
the knottiest problems facing family courts. The recent trend is to permit such moves, largely
because of Wallerstein’s (1995) controversial amica curiae brief, which a recent court
(Baures v. Lewis, 2001) interpreted as supporting the conclusion that “in general, what is
good for the custodial parent is good for the child” (p. 222). The current study provides the
first direct evidence on relocation by dividing college students into groups on the basis of their
divorced parents’ move-away status. On most child outcomes, the ones whose parents moved
are significantly disadvantaged. This suggests courts should give greater weight to the child’s
separate interests in deciding such cases."
Download jounal_of_fampsyrelcoation2003.pdf


Stories help children deal with divorce

The following books can help kids deal with issues and emotions surrounding divorce. Fiction titles include characters coping with similar circumstances that occur when parents divorce.

Fiction

"Dear Mr. Henshaw," by Beverly Cleary. Ten-year-old Leigh shares his thoughts and story through letters to his favorite author. Ages 9 to 11.

"If I Have a Wicked Stepmother, Where's My Prince?," by Melissa Kantor. Lucy reluctantly moves across the country with her stepmother and stepsisters while her father wraps up his work in California. Ages 12 and older.

"The Divorce Express," by Paula Danziger. Phoebe spends much of her time riding a bus between her divorced parents' houses. She tries to fit in each place while figuring out who she really is. Ages 11 and older.

"Southpaw," by Rich Wallace. Jimmy moves to a new town when his parents divorce. He then has to deal with an ultra-competitive dad when he joins the baseball team. Ages 8 and older.

Nonfiction

"Why Me? A Teen Guide to Divorce and Your Feelings," by Rachel Aydt. Advice for middle-school students.

"Family Break-up," by Keeley Bishop and Penny Tripp. Discusses why families break apart.

"My Parents Are Getting Divorced," by Florence Cadier. Written to appeal to teens, this book provides techniques to deal with issues surrounding divorce.

"The Divorce Helpbook for Kids," by Cynthia MacGregor. Includes advice on life after divorce and subsequent emotions and situations.

Big thanks to the THE BLOG OF JEFFERY LALLOWAU BLOG


DIVORCE AND GREEN CARDS

FROM ASIAN JOURNAL: Q: I'M PLANNING to get married to an American citizen. However, I got married a long time ago in the Philippines, and the marriage was never annulled. I haven't seen my husband for many years, and I don't think there is any record of my first marriage. Will this cause a problem with getting my green card?

A: It is very likely that your earlier marriage will prevent you from qualifying for a green card.  All previous marriages must be terminated in order for your new marriage to be valid for immigration purposes.

In order to qualify for a green card through marriage, both you and your spouse must demonstrate that all previous marriages have legally ended.  This means that you need to submit proof that the marriage ended in divorce or annulment as declared by a court of law.  The marriage can also legally end if your former spouse passed away, and you will need to submit a copy of the former spouse’s death certificate.

READ MORE


Effects of Divorce on women's health

DES MOINES, Iowa - Women may give up more than a husband by divorcing they may also lose some of their good health, according to a study by Iowa State University.

The study, spanning 10 years, focused on what happens to rural women's health after their marriage ends, compared with women who stay married, said Fred Lorenz, who co-authored the report.

"What we found was that the act of getting a divorce produced no immediate effects on (physical) health, but it did have effects on mental health," Lorenz said. "Ten years later, those effects on mental health led to effects in physical health."

The findings came from data gathered from rural Iowa women who were interviewed three times in the early 1990s, and again in 2001. All 416 women interviewed were the mothers of adolescent children when the study began. Among them, 102 women were recently divorced.

During the years immediately after divorce from 1991 to 1994 the divorced women reported 7 percent higher levels of psychological distress than married women. They did not report any differences in physical illness at that time.

A decade later, however, the divorced women reported 37 percent more physical illness, but no difference in psychological stress that could be directly linked to the divorce, said Lorenz, who co-authored the study with K.A.S. Wickrama, Rand Conger and Glen Elder. The research was conducted out of the Institute for Social and Behavioral Research based at Iowa State.

The women in the study marked off illnesses from a list of 46 choices ranging from the common cold and sore throat to heart conditions and cancer.

Lorenz said it appears there is a link between the higher number of physical illnesses and the different stresses associated with divorce, including financial problems, demotions, layoffs and parenting problems. He added that divorced women, especially in rural areas, have poor job opportunities and fewer support systems.

Wickrama said the women also suffer stress from having to make changes in housing, insurance, transportation and time with children.

"It looks like (divorced women) are trapped in this vicious circle of financial problems and other stressful life events ..." he said in a statement.

Lorenz said divorced women in rural areas may not have jobs that offer quality health care, and they may put off going to the doctor for preventive care because of financial constraints.

The researchers adjusted the data for age, remarriage, education, income and prior health.

By 2001, 40 of the divorced women had remarried or were living with a partner, and the study found positive influences on the women's health, Wickrama said.

"We found that divorced individuals who remarried indirectly decreased the risk of health problems because they saw beneficial influences on their financial difficulties," he said.

The study, titled "The Short-Term and Decade-Long Effects of Divorce on Women's Midlife Health," was published last summer in the Journal of Health and Social Behavior. The research was part of an ISU study of romantic relationships and marriage in middle-aged adults that began in 1989 in an eight-county area.

Linda Waite, who co-authored the book "The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially," said many studies have shown that when women are divorced or widowed they see a decline in economic well-being, but the long-term effects of the stress of divorce on health is important new research.

She said it can help friends, family, and the legal and medical communities become aware "that divorce often creates a cascade of negative experiences and events for the families involved, with increased need for help, intervention and support."

On the Net:

Iowa State University: http://www.iastate.edu/


Should we file joint or separate tax returns

Should we file joint or separate tax returns?

Warren R. Shiell, attorney at law

www.warrenrshiell.com

Should we file joint or separate returns?

You may only file a joint return if you are married at the end of the tax year (December 31) and both of you agree to file and sign a joint return.1 The box you check on your return is "Married filing jointly." Same sex couples and domestic partners cannot file joint returns. You qualify as married even if you are separated as long as there is no final decree terminating your marital status. A temporary pendente order does not affect your marital status. However, if the divorce is final and your marital status is terminated by the end of the tax year your filing status is either "single" or "Head of household."

There are pros and cons to filing a joint tax return which you should discuss with your tax advisor and your attorney. Generally, your tax burden will be lower although this will not always be the case depending on your respective incomes, deductions and credits. The main disadvantage of filing jointly is that both of you are jointly and severally liable for taxes on the return, including any tax deficiencies, interest and penalties. This exposure can be partially mitigated by executing a Tax Indemnification agreement discussed below. Also the IRS may allow relief to a spouse who files jointly. The three types of IRS relief ("innocent spouse," "separation of liability" and "equitable relief") are discussed in IRS publication 971.

My spouse said they would sign a joint return but they are now refusing to do so?

Spouses often use tax returns as a bargaining tool. Generally, a joint return can only be filed where both parties agree and both sign the return. 2. A court will not order unwilling spouses to file a joint return. 3. However, in rare circumstances the IRS will accept a joint return signed by only one spouse where there is evidence of a clear intent to file a joint return and the non-signing spouse does not file a separate return. 4.

Effect of filing status upon child and spousal support

In calculating guideline child and spousal support, the Court has to take into account "the annual net disposable income of each parent" which is computed by deducting from annual gross income, state and federal income tax liability after considering the appropriate filing status, all available exclusions, deductions, and credits. 5. Therefore, your filing status as "Married filing jointly," "Separate" or "Married filing separately" will have an impact on the amount of support you pay or receive. In one case, the California Court of Appeal overturned the trial court's decision where guideline support had been incorrectly based on husband's status as "Married filing jointly" instead of "Married filing separately." 6. If the parties calculate guideline child and spousal support using a certified program such as "Dissomaster" and incorrectly input that the parties will be filing jointly when the Husband payor should have been filing as "Married filing separately" and the Wife as "Head of household," the Husband may well end up paying less in child and spousal support because the program makes allowances for tax liability.

If we file a joint return what precautions should we take?

First, make sure that any tax refunds are paid to both of you. If you decide to have any refund sent to you by check make sure that the check is paid to both of you jointly. If a direct deposit is sought make sure the refund is routed to a joint account. You should reach a clear agreement as to how tax liability will be apportioned. A common approach is to prorate tax liability using a ratio based on both spouses separate incomes. Another approach could be based upon what each spouse would have paid if they had filed separate returns. Then to the extent a spouse's share exceeds what he or she has already paid by way of salary or withholding or estimated tax, that spouse would pay the difference.

Second, if you are going to file taxes jointly, it's a good idea to get your spouse to sign a Stipulation regarding Tax Indemnification since both spouses will be jointly and severally liable taxes on the return, including any tax deficiencies, interest and penalties. Even if the divorce (dissolution decree) states that one spouse will be liable for any amounts due on previously filed joint returns, the IRS may still hold both spouses jointly and severally liable and go after either spouse.

Example of a Tax Indemnification Agreement

IT IS HEREBY STIPULATED by Wife and Husband as follows:
1. Wife shall immediately provide the Husband with copies of all records and documents necessary for the preparation by Husband and his accountant of Joint Federal and State Tax Returns (“the Tax Returns”) for the year ending _____. Parties acknowledge that the Tax Returns will be prepared soley under Husband's direction and control.
2. Wife shall immediately respond to any reasonable requests for information from the Husband or his accountant in the preparation of the Tax Returns.
3. Wife shall sign the Tax Returns immediately upon presentation to her. Such signing does not constitute an admission by Wife as to the accuracy of the Tax Returns.
4. In the event that the parties shall receive a Federal or State tax refund, the _____ shall immediately endorse the full amount of the tax refund check to the ______.
5. The Husband agrees to release, indemnify and hold harmless the Wife from any Federal or State claims, fines, liabilities, penalties and assessments arising out of the filing of the _____ Tax Returns, with the exception of any unreported income to the Wife that she failed to provide to Husband and his accountant in preparing the Tax Returns.
6. The Husband shall pay all costs and fees of any administrative or judicial proceedings in connection with the filing of the Tax Returns.

Be warned. Even if you have a Tax Indemnification Agreement it may not help you if your spouse files for bankruptcy. If you have doubts about the accuracy of your spouse's, file separately.

If you are still married at the end of the tax year (December 31) but separated and your spouse will not file a joint return how should you file?

You must file either "Married filing separately" or as "Head of household" depending on your circumstances. Filing as "Head of household" has the following advantages:
• You can claim the standard deduction even if your spouse files a separate return and itemizes deductions.
• Your standard deduction is higher.
• Your tax rate may be lower.
• You may be able to claim additional credits such as the dependent care credit and earned income credit that you cannot claim if your status is "Married filing separately."
• There are higher limits for child care credit, retirement savings contributions credit, itemized deductions.

If you are still married by the end of the tax year you can file as "Head of household" if you satisfy the following requirements:

• You paid more than half the cost of maintaining your home for the tax year. Maintaining a home includes rent, mortgage, taxes, insurance on the home, utilities and food eaten in the home.
• Your spouse did not live with you for the last 6 months of the tax year.
• Your home was the main home of your child, step child or eligible foster child for more than half the year.
• You could claim a dependent exemption for the child.

The other non-custodial spouse must then file as "Married filing separately." Once you are divorced you may still file as "Head of household" if you paid more than half the cost of maintaining your home for the tax year and your children lived with you for more than half the tax year. There are different rules for filing as "Joint Custody of Head Household" and receiving a credit against California State taxes.7.

If one spouse files "Married filing separately" do we take the standard deduction or can we itemize deductions?

Consider this example. Bob who separated from Jackie but is still married at the end of 2005 decides to file "Married filing separately" in his 2005 taxes. He decides to itemize deductions which are considerable. Jackie his wife does not have large deductions and wants to take the standard deduction. The rule is that if Jackie qualifies as "Head of household" she can elect to take the standard deduction or itemize.8 If she does not qualify as "Head of household" and Bob itemizes she must also itemize even if she has limited deductions.9. This is true even if she files before Bob and claims a standard deduction. She will have to file an amended return when Bob claims itemized deductions.

When the parties file separately who gets the mortgage interest deduction and property tax deductions?

If the marital home is the separate property of one spouse they can claim the deductions. If the property is jointly owned, the spouse that actually pays the mortgage interest and property taxes is entitled to take the deductions. 10. Other expenses are deductible to the spouse to the extent that they are paid out of separate funds. If they are paid out of community funds each spouse can deduct one half of the interest and taxes.

Who can claim the dependency exemption and the Child Tax Credit and the Child Care Credit?

Generally, where the parties file separately it is the parent with whom the children have resided for the longest period of time during the tax year that can claim the dependency exemption and the Child Tax Credit ($1,000 for each child under 17).11. If the child lived with both parents for the same amount of time, the parent with the highest annual adjusted gross income gets to claim the child. It can therefore be important to keep a log of the actual amount of time the children spent with you. However, the non-custodial parent may take the exemption and the credit if the custodial parent signs an IRS Form 8332 "Release of Claim to Exemption of Divorced or Separated Parents" or a divorce decree or separation agreement releases the exemption and satisfies the wording of Form 8332. In California the court has the power to allocate the dependency deduction to the non-custodial parent. 12. It may do this to maximize support. The Child Tax credit can only be claimed by the parent who claims the dependency exemption. 13. Generally, whichever spouse is in the higher bracket should claim the exemption and compensate the other spouse for the shortfall.
The Child Care credit can only be claimed by the custodial parent if the other parent is not a member of the household for the last 6 months of the tax year. 14. Unlike the dependency exemption it cannot be traded although you may claim the credit even if the dependency exemption has been allocated to the other parent.






                                                                                                                        

1.  Generally see IRS Pub 504 "Divorced or Separated Individuals" at www.irs.gov
2. IRS Pub. 17, p.21. Available at www.irs.gov. 26 C.F.R. § 1.6013-1(a)(1)
3.  Marriage of Carlton & D'Allessandro (2001) 91 Cal. App. 4th 1213.
4. In Riportella v. Commissioner, TCM 1981-463, Tax court held that Mrs. Riportella's failure to sign a joint return was not fatal because she had signed joint returns for the previous two years, had signed a joint Form 4868 for an automatic extension, and had attempted to "sell" her signature for concessions in the divorce.
5. Fam. Code, § 4059
6. Marriage of Carlton && D'Allessandro, supra.
7. See www.ftb.ca.gov
8. I.R.C. 2(b)(c)
9. I.R.C.  63 (c)(6)(a)
10.  Rev. Rul. 71-268.
11. I.R.C. 152 (c)(4)(B)(i). IRS Pub. 501, p.12-13.
12. Monterey County v. Cornejo (1991) 53 Cal. App. 3d 1271.
13. IRC 24 (c)(1)(A).
14. IRC § 21(e)(4). IRS Pub. 503.


How do we divide debts in divorce

By Warren R. Shiell
www.WarrenRShiell.com
Download how_do_we_divide_debts_in_divorce.doc

Question: My spouse ran up huge credit card debts during the marriage. In dividing assets and debts in the settlement agreement who should be responsible for these debts?

In California, Family Code section 910 provides that the community is liable for all debts incurred during the marriage and prior to separation. It doesn’t matter whether the debt was incurred by one spouse for there own benefit or for the family. It also doesn't matter whose name appears on the bill or the credit card statements. If it was incurred during the marriage and prior to separation it's a community property debt and both spouses are equally liable. This means that when the parties are negotiating a settlement and tallying the marital balance sheet such debts should be divided equally. A better option might be that one spouse agrees to pay off the joint debts in return for a greater share of the community property. The spouse paying off the debts can at least make sure that joint debts are paid because as long as debts are jointly owed both spouses are financially responsible to the creditors.

Question: What if a married couple pays off one parties pre-marriage debts?

Consider this example. Bob and Jackie get married. Bob has huge credit card debts that he incurred before the marriage. Bob and Jackie want to improve their credit rating so they can buy a house. They agree to pay off Bob's debts. However, once they are debt free, Bob files for dissolution. In this case, Bob and Jackie have used community property earnings to pay off Bob's separate property debt. California case law states that the community is entitled to a re-imbursement for the amount it paid to discharge one parties separate property debts. 1 So in the above example, the community is entitled to a reimbursement for paying Bob's debts.

Question: What if one party uses their separate property to pay off community property debts?

In this example after they get married Bob and Jackie go on vacation and rack up huge debts. Jackie dips into her brokerage account which she built up prior to the marriage to pay off the vacation debts. In this case, Jackie has used her separate property to pay off community debts. California case law states that a spouse who, during marriage and before separation, uses separate property to satisfy a community debt is presumed to make a gift to the community. 2 So in the above example, Jackie is not entitled to a re-imbursement for paying the community vacation debts.

There is one important exception to his rule. Family Code section 2640 provides that where one party uses their separate property for the acquisition of community property, the paying spouse has a statutory tracing right of reimbursement if they have not waived the right in writing. Contributions to the acquisition of property include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of property. They do not include payments of interest on a loan to purchase property, or payments for maintenance, insurance, or taxation of the property. So in the above example, if Jackie had used her separate property brokerage account to pay off the principal on a joint mortgage or for a downpayment she would be entitled to a reimbursement of that amount.

Question: After separation one spouse uses their separate property earnings or property to pay off community debts.

In this example after Bob and Jackie separate, Jackie continues to drive the BMW which was purchased with a loan during the marriage. Bob continues making the loan payments on the car. Can Bob claim a reimbursement credit for all the payments he makes from the date of separation to the date of trial?

California case law has developed the general rule that a spouse who, after separation, uses earnings or other separate property to pay pre-existing community obligations should be reimbursed out of community property upon dissolution. 3 These are traditionally called "Epstein credits" after the California Supreme Court case that established the rule.

Under this general Bob could, in theory, claim credits for all the payments he makes on the car loan after separation. But what if Bob was driving the car and making the payments. Wouldn’t it be unfair for Bob to have the use of the car and also claim reimbursement credits? That's what the Court said in Epstein. It laid out an exception to the general rule where the paying spouse also uses the asset and the "amount paid was not substantially in excess of the value of the use." So this means that Bob could not claim credits for the monthly payments if he drives the car but probably could claim a credit if he paid of the entire loan.

There are two other important exceptions to the Epstein general rule that a spouse who uses separate earnings or property to pay off pre-existing community obligations is entitled to a reimbursement: (a) where there is an agreement between the parties that the payments will not be reimbursed, and (b) where the payments were intended as a gift or as child or spousal support.

Question: After separation one spouse uses community property funds to pay of their living expenses. What are the consequences?

In this example, Bob and Jackie separate and Bob agrees to pay $1000 per month in support and "whatever else you need out savings." Jackie takes out $1,000 community property from the joint bank account to pay various living expenses. California case law provides that the community is entitled to re-imbursement where one spouse uses community property to pay separate obligations after separation to the extent that exceed a reasonable amount for child and spousal support. 4 A reasonable amount would probably be the amount of guideline support that a Court would order in an application for temporary child and spousal support. If that amount were $1,500 amount in the above example, Jackie would have to reimburse the community $500 ($2,000 - $1,500 she received). In the division of community property she would receive $250 less in community property. Since this rule flows from Epstein, the parties can waive the rule in writing and agree that such payments shall not reduce the community estate.

Question: After separation one spouse stays in the family home while the other spouse pays the mortgage. What are the consequences?

It's often the case that after separation one spouse moves out of the family home ("the out-spouse") while the other spouse stays in the home with the children ("the in-spouse"). The out-spouse, usually the husband, may offer to maintain the status quo by continuing to pay the mortgage payments and other payments such as property taxes to maintain the property. In such a situation the in-spouse should be warned that there may be serious consequences of such an arrangement at the time of trial.

We've already seen one consequence. The out-spouse paying the mortgage payments may be entitled to Epstein credits because they are paying separate property earnings towards a community property debt unless there was an agreement to waive such reimbursements or such payments were a form of child or spousal support.

The other major consequence is that if the reasonable rental value of the family home is more than the mortgage payments, the in-spouse may be required to re-imburse the community for the difference in these payments between the date of separation and the date of trial. These are called Watt's charges after the case that established the rule. 5. The general rule is that where one spouse has the exclusive use of community assets during the date of separation and trial, that spouse may be required to compensate the community for the reasonable value of that use. Consider this example. Bob and Jackie separate. Jackie and the kids stay in the family home after separation. Bob agrees that he'll continue to support the family and pay the mortgage and other expenses. The mortgage payments are $1,500 per month. If Jackie had to pay the fair market rent for the property she'd pay $2,500 per month. Bob pays the mortgage for 10 months from the date of separation to the date of trial. Bob could argue that he should be re-imbursed Watt's charges of $10,000 ($2,500 - $1000 x 10). In a division of community property he'd be entitled to an extra $5,000. Bob could argue that he should also be entitled to Epstein credits of a further $15, 000 ($1,500 x 10) which would increase his share of community property by $7,500.

This would mean that Jackie's entitlement to community property would be reduced by $25,000 when she thought that Bob was supporting her and maintaining the status quo? Isn’t this grossly unfair? 7. You'd think so but that didn’t stop the Court of Appeal awarding Epstein credits and Watts charges in similar circumstances in In re Marriage of Jeffries (1991) 228 Cal. App. 3d 548. But wait a minute. Isn’t there an exception to the rule where payments are made "in lieu of spousal support?" The answer is yes "but" this has to be clearly spelled out before the Court will treat such payments as support. In Jeffries, there was even an Order of the Court that said the payments were "in lieu of spousal support." However, the Order also said that the Court retained jurisdiction to characterize these payments and determine whether the Husband should be entitled to reimbursements.

In another case the Court of Appeal reached exactly the opposite conclusion to Jeffries. 6. In this case the husband also paid the mortgage pursuant to a temporary court Order "in lieu of spousal support" and at trial claimed Epstein credits and Watts charges. The Court of Appeal held that public policy and the language of the Court order required that the Court deny the husband's claims for Epstein credits. The Court then decided that since the wife was, in effect, paying the mortgage she would not have to pay any Watt's charges because the monthly mortgage payments were the same as the fair market rental value of the home.

The only solution to this mess is for the parties and their attorneys to agree early on in the proceedings whether a spouses payment of community debts (such as the mortgage) and one spouse living in the family residence should be treated as spousal support which does not generate Epstein credits or Watt's charges. If it's treated as spousal support any agreement or Order should contain explicit language that mortgage and other payments by the out-spouse and exclusive residence by the in-spouse in the family home "shall be treated" as spousal and, if applicable, child support and the paying spouse shall not receive any reimbursements such as Watt's, Epstein, Jeffries credits and charges.

Footnotes:

1. Marriage of Walter (1976) 57 Cal. App. 3d 997.
2. See v. See (1966) 64 Cal. App. 2d 778. In Re Marriage of Nicholson (2002) 104 Cal. App. 4 289, the Court of Appeal held where Husband had used $30,000 that his mother had given him as a gift (i.e. separate property ) to pay off the credit card ( community property debts) so they could qualify for a loan to buy a house, he was not entitled to a re-imbursement.
3. In re Marriage of Epstein (1979) 24 Cal. 3d 76. Also In Re Marriage of Tucker (1983) 141 Cal. App. 3d 128.
4. Epstein, above; In re Marriage Stalworth (1987) 192 Cal. App. 3d 742.
5. In re Marriage of Watts (1985) 171 Cal. App. 3d 366.
6. In Re Marriage of Garcia (1990) 224 Cal. App. 3d 885.
7. This is the conclusion of one Family Law Commissioner: "It is fundamentally unfair for one spouse to move out and to allow a post-separation living arrangement to stabilize on one set of financial assumptions and then, without warning to the other spouse, introduce for the first time at trial a concept as pernicious as a Watts credit claim to set up an entirely different set of financial assumptions." Commissioner Richard Curtis (2003)


Tax treatment of Stock Options

Tax Treatment of Stock Options
Warren R. Shiell, Attorney At Law © 2006

The tax treatment of stock options in divorce depends to a large extent on whether the options are qualified or non-qualified stock options. Qualified stock options include incentive stock options (ISO's) that meet the requirements of IRC 422 and employee stock options (ESPP's) that meet the requirements of IRC 423. Qualified stock options generally receive more favorable tax treatment.

The benefit to the taxpayer of receiving qualified stock options is that they do not have to report the "price break" or "compensation element" as regular taxable income, although they may still have to make an adjustment for the Alternative Minimum Tax. The "compensation element" is the difference between the exercise price or "strike price" and the market price on the day when the options are exercised multiplied by the amount of options exercised. If the taxpayer then holds onto them for the statutory "qualifying period" - at least one year and one day after the date of purchase and two years after the original grant date - the taxpayer is only taxed on the gain at the capital gains rate of 15% of less - a lot lower than the regular income tax rate.

Contrast this with the treatment of non-qualified stock options. The taxpayer has to report the "compensation element" as taxable compensation in the year when the options are exercised which is then taxed at the regular income tax rate. The taxpayer is taxed again on any taxable gain when the shares are subsequently sold.

The following an example will illustrate the difference. The exercise price for the shares which are covered by the option is $25 per share. The taxpayer exercises 100 options to purchase shares at $45 per share. The "compensation element" is $2,000 (($45-$20) x 100). If these are qualified stock option's, the taxpayer wouldn’t have to report anything on his Schedule D (capital gains and losses) and his employer wouldn't include any compensation on his W2. He may still have to include the $2,000 on Form 6251 Alternative Minimum Tax. However, if these shares were non-qualified stock options, the employer would have to include the $2,000 in Box 1(wages) of the taxpayers W2 and he'd be taxed on it as ordinary income. In both cases, the taxpayer would again be liable for capital gains tax when he sold the shares. The amount of capital gains would depend on the amount of the gain and when the shares were sold.

In a divorce, it's important to consider the tax consequences of any transfers of stock options because the favorable tax treatment of qualifying stock options may be jeopardized. IRC 422 (b)(5) provides that an ISO cannot be transferred to or exercised by any person other that the employee to whom the option is granted, except upon death. This means that if, for example, ISO's are transferred to a spouse as part of a divorce settlement, the ISO's lose their qualified status and are treated as non-qualified stock options. It should be noted that the situation is different if, instead of transferring qualifying stock options, the employee transfers the stock that is acquired upon the exercise of the qualifying stock options. IRC 424 (c) (4) provides that a section 1041(a) transfer of such stock incident to a divorce is not a disqualifying disposition. The non-employee in only then liable for capital gains tax when the stock is sold.

The treatment of vested non-qualified stock options in a divorce is discussed in IRS Revenue rulings 2002-22 and 2004-60. These rulings first clarify that rule that an employee spouse is not required to include an amount in gross income when making a transfer of either qualified or non-qualified stock options to the non-employee spouse as part of the divorce settlement. It's only when the non-employee spouse exercises those options, that he or she will be required to pay income tax on any "compensation element". The rulings also make it clear that the same principles apply to transfers of any deferred compensation. A non-employee spouse must include distributions from a deferred compensation plan as income when received.

Going back to the above example, the non-employee spouse would be only taxable on $2,000 when they exercised the options. The non-employee spouse would have an additional taxable gain or loss when they subsequently sold the shares. There is, however, one important exception. Where non-qualified stock options are transferred pursuant to a divorce and the divorce order or agreement specifically provides that the employee spouse must report the gross income attributable, the IRS will treat the gross income as that of the transferor upon the exercise of the option.


Overwiew of Child Support

Child Support Overview

In 1999, over $14 billion was owed to California's children. 35% of families with single mothers had income below the poverty line. Statistics show that payment of child support reduces poverty and corresponds to greater involvement by the non-custodial parent in the children's lives.

Child Support Basics

Child Support must be paid by a non-custodial parent until the child marries, dies, is emancipated, turns 18 and is not a full time school student, or turns 19 if they are a full time high school student, whichever occurs first. An adult child who is disabled and unable to earn a living has an ongoing right to support.

How Much Support? The "Guideline"

Overview

In California, the courts use a complex mathematical formula to calculate child support that is based on a number of factors such as the gross income of each parent, the percentage of time each parent spends with each child, available tax deductions, child care costs, tax status of each parent and so on. This amount is often referred to as the "guideline" child support amount. Because of the complexity of calculating the "guideline" amount, the Court uses a software program called "Dissomaster." Most attorneys use this program and will be able to perform child support calculations. The Dissomaster software can be found at www.cflr.com. Any child support order must specify the amount of child support and when it is to be paid. Couples often agree to monthly payments in two installments to coincide with the payor's bi-weekly receipt of wages.

Deviations From The Guideline

The Court may depart from the "guideline" amount in a number of situations set forth in Family Code section 4057 (b). For example, the parent ordered to pay child support may have extraordinary high income and the guideline amount would exceed the needs of the children. Another example would be where the children have special medical or other needs that require an amount greater than the guideline.

"Add-ons" to Child Support

There are a number of additional expenses that the non-custodial parent may be required to pay in full or in part. Mandatory add-ons that the Court is required to order include child care costs related to employment or training or education for employment and the reasonable uninsured health care costs for the children. Discretionary add-ons include costs related to educational or other special needs of the children and travel expenses for visitation. Generally, the Court will allocate add-ons equally between the parties. However, if the paying parent can prove that this would be unfair, Family Code section 4061(b) provides a procedure for the Court to allocate the payment of add-ons according to the net spendable income of each party. This most often comes into play where one party is also paying spousal support.

Health Care For The Children

Family Code section 3751 requires the Court, when making a child support order, to order either or both parents to maintain health insurance for the minor children if it is available at no cost or at a reasonable cost.

Getting a Child Support Order

Once a petition in a dissolution (divorce) has been filed a parent may request that the Court order temporary child support for children born during the marriage. Where the parents are not married, before the Court can order support, paternity must be established. Since January 1, 1995, all hospitals have been required to provide unmarried parents with the opportunity to voluntarily acknowledge paternity by signing a Voluntary Declaration of Paternity. If this is signed and not rescinded within 60 days it has the same effect as a paternity judgment and can provide the basis for custody, visitation or support. Even if it has not been challenged a motion for genetic testing may still be brought within two years of the child's birth challenging the Voluntary Declaration of Paternity.

Department of Child Support Services (DCSS)

Parents can retain a private attorney to establish and collect support or employ the services of the Department of Child Support Services (DCSS). Unfortunately, Los Angeles County has one of the poorest child collection records in the state and fares poorly when compared to national statistics.

Enforcing a Child Support Order

In California, every time the Court makes a child support Order it must issue a Wage Assignment Order that directs the payor's employer to deduct the amount of child support from wages and pay it directly to the payee parent. The wage assignment can be stayed by written agreement of the parties.

Other Remedies

If you are owed child support arrears you may request that Court hold the payor parent be held in contempt. If you can prove that non-payment was knowing and willful, the payor parent can be fined and even jailed.

If you are owed child support arrears you may bring an Order To Show Cause requesting that the Court determine the amount of arrearages. You can also petition the Court for a Writ of Execution which can be used against bank accounts.

Family Code section 4600 also allows the Court to order the payor parent to deposit up to one year's child support payments in an interest bearing account as security. This can be used if there's been a problem receiving child support in the past or if the payor is self employed.

Changes

If you already have a judgment in your case you can find out if their income has changed by having them served with a Request for Production of an Income and Expense Declaration After Judgment (form FL-396) on the other parent, along with an Income and Expense Declaration (form FL-150) which are available from www.courtinfo.ca.gov/forms/

Taxation

Child support is not taxable income to the parent who receives it and it cannot be deducted by the parent who pays it.

Links
www.lasuperiorcourt.org
www.cflr.com
http://www.courtinfo.ca.gov/selfhelp/family/


Out of wedlock births reach all time high in the US

Out-of-wedlock births in the United States have climbed to an all-time high, accounting for nearly four in 10 babies born last year, government health officials said Tuesday.

While out-of-wedlock births have long been associated with teen mothers, the teen birth rate actually dropped last year to the lowest level on record. Instead, births among unwed mothers rose most dramatically among women in their 20s.

 

  Link:  http://www.breitbart.com/news/2006/11/21/D8LHMFDO0.html    


Tax Issues in Divorce

Also see my post "Do we file joint tax returns?"

By Eva Rosenberg, MarketWatch
New York Daily News - http://www.nydailynews.com
Sunday, September 24th, 2006

LOS ANGELES (MarketWatch) - Despite a divorce agreement that specifically said neither party shall pay or receive alimony, one reader, Divorced in New York, was hit with a $5,000 tax bill from the Internal Revenue Service for some phantom alimony.
Even though the IRS had a copy of the divorce agreement in hand, the agency insisted on assessing the taxes. Why? Because this woman's ex-husband presented canceled checks to prove he made payments to her in the amount reported as alimony. The IRS didn't really care that it wasn't alimony.

What were the payments? They were her portion of his monthly pension, as granted to her in the divorce. Unfortunately, the state was sending the money to Divorced's ex-husband, with the withholding already pulled out, and he was sending to her half of the net. Then, on his tax return, the ex-husband was deducting his full payment as alimony, and pocketing her share of the refund.

This problem could have been avoided if the attorney had set up a QDRO, says Patricia Powell, a certified financial planner and chief executive of The Powell Financial Group Inc., in Martinsville, N.J.

What's a QDRO? A qualified domestic relations order. Properly prepared, it instructs the pension plan to issue a check directly to the ex-wife for her share of the income.

With a QDRO, an ex-spouse can decide whether to get a lump sum rolled over to her IRA, cash it out and pay taxes, or continue to get monthly payments. She can designate how much she chooses to have withheld from her check. And, getting credit for her full share of the withholding, if Divorced had reported the pension income properly on her own tax return, she would have owed no tax.

This is a typical error when couples indulge in do-it-yourself divorces, said Lynne Gold-Bikin, chair of the family law practice group at Wolf, Block, Schorr and Solis-Cohen LLP in Norristown, Penn. Even seemingly simple divorces are more complex than they appear. They involve knowledge of both divorce law and tax law. Gold-Bikin says that if you're not a tax-law expert, you should get one to review the divorce agreement and settlement.

If your divorce doesn't get a tax tune-up, what kinds of errors are apt to occur? Here are some common problems.

Deceptive equality Often, assets appear to be evenly split based on fair market value. Everything looks all nice and equitable, but one person just got stuck with all the taxable assets, while the other walked off tax-free, warns Powell. One of the biggest traps for women, especially mothers, is that they often give up their right to practically everything in order to keep the house and avoid moving their children.

Here are some tax rules to consider:

Pensions, 401(k)s and IRAs are taxed at ordinary income rates. With the high distribution added to your other income, this can throw you into the top tax bracket of 35%.

Stocks and investments often get long-term capital gain treatment - limited to 15%.

The house looks like a good deal with that $500,000 personal residence exclusion. But once your ex signs it over to you, you've instantly lost half that cushion. If the appreciation on your residence is substantially more than the $250,000 personal exclusion, Powell advises you sell the house while you're still married and can use the full $500,000 joint exclusion. Then, split the money and buy your own home in the same neighborhood, which will now have a higher tax basis (basis is the cost, for tax purposes). Note: In most states, property tax keeps up with the increasing market value of the home. In California, due to Proposition 13, property taxes are based on the original purchase price. Before you do this in California, run the numbers to see whether the increased annual property tax payments on the new home might cost you more than the potential capital gains tax.

Cash is valued at face-value for tax purposes - there is no tax on cash!

How can you avoid the problem of "deceptive equality"? Powell suggests you sell off the assets with the high tax values and split the cash. Or if that's impractical, balance the split based on the tax costs. Have your certified financial planner or tax professional review the assets' tax bases to help you reach a truly equitable split.

The vanishing alimony trick Alimony recapture can be a common problem, cautions Gold-Bikin.

IRS Publication 504 explains what the recapture is: "You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year."

Why is this recapture needed if the divorce agreement is properly drafted? Gold-Bikin said this often happens when the alimony payments aren't made on schedule. If several payments are missed in one year, then made up in another year, it's easy to see that $15,000 swing take place. Or if payments are stopped altogether and there haven't been three years of regular alimony payments, that would also trigger the recapture.

Why does this matter? Because the person paying the alimony will lose the deduction. And the person who received the money may go back and file amended returns for all the alimony years - and get refunds. Read that last sentence again if you're dealing with a deadbeat former spouse. You may have a refund coming!

How can you avoid this problem? Gold-Bikin recommends you adhere to the alimony payment schedule.

Vague assignments When the divorce decree awards family support without spelling out which part is for child support and which is for spousal support, it's all taxable to the recipient as alimony, and deductible to the payer, says Gold-Bikin. This the result of a 2005 Tax Court decision in Berry v. Commissioner.

How can you avoid this problem? Spell out how much of the support is designated for each child, and how much is spousal support.

Tax benefit tug-of-war One of Gold-Bikin's pet peeves is couples who fight over every smidgen of the tax benefits related to exemptions for their children, even when their income level causes them to lose those benefits.

Hope and Lifetime Learning Credits start to phase out for single or head-of-household filers when their adjusted gross income hits $45,000 and is eliminated entirely for those filers when AGI exceeds $55,000.

The deduction for student loan interest starts to phase out for single or HOH filers with adjusted gross income of $50,000, and is completely eliminated for those with AGI exceeding $65,000.

The child tax credit is lost when HOH income reaches $75,000.

Itemized deductions start to phase out at $150,500 for singles, HOH and married filing jointly

Personal exemptions phase out at incomes of $188,150 to $310,650 for HOH.

Landing in tax debtor's purgatory You probably know and pity many people who are stuck with divorce tax debt, and you wonder how they could have been so foolish, or trusting. They sign a joint tax return, even though they're getting divorced because they no longer trust each other. And they know better. But, "He promised to pay the whole tax!" is the usual refrain. Of course, he doesn't.

Powell says she's seen the most compelling and seductive behavior watching couples during divorce. The initiator of the divorce goes into courting mode, implying cooperation, an easy transition, or even a reconciliation - all the while, planning his/her wedding to someone else.

They effectively blindside their about-to-be ex into agreeing to practically anything, even to signing a joint tax return, when every fiber of their being is warning them away from this.

If you must sign that return, perhaps because it will reduce your own share of the tax liability, how can you best protect yourself?

Gold-Bikin says it's as easy as 1-2-3.

Get an indemnification letter as part of the divorce, making your ex responsible for his/her share of all taxes. And be sure that indemnification letter includes specific instructions for how any refunds are to be allocated. While IRS may not honor the agreement between the two of you, it does give you a basis to sue your ex, if you're ever stuck paying his or her share of the tax.

Don't ever sign a balance-due tax return without getting a certified check to pay your ex's share in full. Don't rely on promises from your ex or his/her attorney. They're rarely fulfilled.

If there is a refund coming, use IRS's new Form 8888 that allows you to have the refunds split up in any pre-determined allocation, and deposited directly to two different bank accounts.

Tune in, not out There are many, many more traps a divorcing couple can fall into. But, you're starting to get the idea. Even the simplest-seeming amicable divorce may have far-reaching financial implications.

Sweat the details, and don't just give up everything to get it all over with. You might think it's worth the price at the time because you're feeling emotionally out of control. Later, you'll realize just how badly you've been fleeced, and will spend years lamenting your decisions. If you can't face up to making the hard decisions, get a trusted family member or friend to work with you and your attorney, someone who can protect your interests.

Eva Rosenberg is the founder of TaxMama.com and an enrolled agent licensed to represent taxpayers before the IRS. She is the author of the new book "Small Business Taxes Made Easy." Reach her at taxwatch@gmail.com.


From Protecting Your Credit During Divorce

         

Darren Meade, American Chronicle

September 22, 2006
When a marriage ends in divorce, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn’t have to change is the credit status you’ve worked so hard to achieve.

Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one spouse’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.

The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.

The first step for anyone going through a divorce is to obtain copies of your credit report from the 3 major agencies: Equifax, Experian®, and TransUnion®. It’s impossible to formulate a plan without having a complete understanding of the situation. (Once a year, you may obtain a free credit report by visiting www.AnnualCreditReport.com.)

Once you’ve gathered the facts, you can begin to address what’s most important. Create a spreadsheet, and list all of the accounts that are currently open. For each entry, fill in columns with the following information: creditor name, contact number, the account number, type of account (e.g. credit card, car loan, etc.), account status (e.g. current, past due), account balance, minimum monthly payment amount, and who is vested in the account

(joint/individual/authorized signer).

Now that you have this information at your fingertips, it’s time to make a plan.

There are two types of credit accounts, and each is handled differently during a divorce.

The first type is a secured account, meaning it’s attached to an asset. The most common secured accounts are car loans and home mortgages. The second type is an unsecured account. These accounts are typically credit cards and charge cards, and they have no assets attached.


When it comes to a secured account, your best option is to sell the asset. This way the loan is paid off and your name is no longer attached. The next best option is to refinance the loan. In other words, one spouse buys out the other. This only works, however, if the purchasing spouse can qualify for a loan by themselves and can assume payments on their own. Your last option is to keep your name on the loan. This is the most risky option because if you’re not the one making the payment, your credit is truly vulnerable. If you decide to keep your name on the loan, make sure your name is also kept on the title. The worst case scenario is being stuck paying for something that you do not legally own.

In the case of a mortgage, enlisting the aid of a qualified mortgage professional is extremely important. This individual will review your existing home loan along with the equity you’ve built up and help you to determine the best course of action.

As a fellow member of the Divorced fraternity, The President of Victory Mortgage Lenders, also went through a Divorce.


When it comes to unsecured accounts, you will need to act quickly. It’s important to know which spouse (if not both) is vested. If you are merely a signer on the account, have your name removed immediately. If you are the vested party and your spouse is a signer, have their name removed. Any joint accounts (both parties vested) that do not carry a balance should be closed immediately.

If there are jointly vested accounts which carry a balance, your best option is to have them frozen. This will ensure that no future charges can be made to the accounts. When an account is frozen, however, it is frozen for both parties. If you do not have any credit cards in your name, it is recommended you obtain one before freezing all of your jointly vested accounts. By having a card in your own name, you now have the option of transferring any joint balances into your account, guaranteeing they’ll get paid.

Ensuring payment on a debt which carries your name is paramount when it comes to preserving credit. Keep in mind that one 30-day late payment can drop your credit score as much as 75 points. It is also important to know that a divorce decree does not override any agreement you have with a creditor. So, regardless of which spouse is ordered to pay by the judge, not doing so will affect the credit score of both parties. The message here is to not only eliminate all joint accounts, but to do it quickly.

Divorce is difficult for everyone involved. By taking these steps, you can ensure that your credit remains intact.


Developing a parenting plan

Developing a Parenting Plan

How can parents decide on a custody and visitation plan?

Parents who separate should have a custody and visitation or parenting plan for deciding how they will share parenting responsibilities. A custody and visitation plan must be in writing and signed by both parties and a judge to be enforceable.

What if parents cannot agree on a custody and visitation plan?

If parents cannot agree on custody and visitation on their own they may go to court and ask a judge for a temporary order. The Court will first send them to Conciliation   Court where a trained mediator tries to help the parties agree. In Los Angeles conciliation  services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles Court 's web site at www.lasuperiorcourt.org.

Developing a Plan

While it is difficult to make generalizations about the suitability of various parenting plans many experts agree that during the first years of life, it is important for young children to develop an attachment to a primary caretaker and recommend frequent but non-overnight visitation with the non-custodial parent for short periods of time. As the children grow older and are better able to develop multiple attachments longer periods of continuous overnight visitation is encouraged.

Consider the practical aspects of any plan

A first step in developing a plan is charting out the schedules of the children and both parents. This will help you make realistic choices based upon practical considerations. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for the other parent. You should then compare both parents’ plans to see if there is any common ground.

The children’s best interests

When parents decide custody and visitation they should develop a plan around the needs and best interests of their children and not their needs. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Next you should consider who has historically been responsible for different commitments with the children and which parent is practically able to fulfill them in the future. Questions you should consider are:

Who do the children turn to when they have a problem or need to share their feelings?

Who does homework with the children?

What do the children do on the weekends?

Do the children spend time with relatives and who takes them?

Who takes the children to medical appointments or picks them up in when they are sick?

Who provides the children’s physical care, such as bathing, changing diapers, arranging for sitters, haircuts, feeding?

How do you and your spouse discipline the children and set structure for them?

What kind of personal attention do each of you give to the children, such as teaching problem solving, reading, playing together, sharing activities?

Who is responsible for the children’s social activities, such as arranging birthdays, play dates, trick or treating, taking class trips, games, lessons, school plays etc?

Joint Custody

For older children one of the key issues is whether a joint custody is more appropriate than an arrangement where the non-custodial parent has alternate weekends and one or two overnights during the week. The answer will be different for each family. The parent’s relationship and their level of cooperation and also the children’s preferences can be as important as how much time the children physically spend with each parent. The Family Code provides that any parental plan must encourage frequent and continuing contact although it does not specify a particular plan.

The Legal Aspects of a Plan

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children. These are the terms that are used in agreements.

"Legal" custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there are issues of domestic violence and substance abuse or there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/.

"Physical" custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A custody and visitation plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? In California, the Judicial Counsel has developed forms to be used when requesting custody and visitation. The forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment” can be found at www. Courtinfo.ca.gov/forms and are helpful in developing plans.

Sample physical custody plans

Some states have developed model parenting plans that take into account what is appropriate for children of different ages and stages of development. The Oregon Judicial Department and the Supreme Court for the State of Arizona have both developed model parenting plans for Parents that suggest different parenting plan options. (see Oregon ’s plan at http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm.
Arizona ’s plan at www.supreme.state.az.us/dr/Text/ModelPTPlans.htm)

The following samples are based on those parenting plans.

Parent A’s time with the child is indicated by solids.

Birth to 12 months

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Sample Language:

Commencing on _________, Parent A shall have physical custody of the minor child(ren) each week on Tuesday and Thursday from 4:30 p.m. to 7:30 pm. and Saturday from 10:00 a.m. to 6:00 p.m. Parent A shall be responsible for picking up and dropping of the minor child(ren) at the residence of Parent B. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

Comments:

At this young age, infants form a primary attachment to one parent and long periods of absence from the primary attachment figure may be traumatic. Parents should minimize the infant’s basic sleep, feeding and waking cycles.

Pre-schooler 3 – 5 years

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Week 2

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

Week 3

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

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The parties alternate weekends and the non-custodial parent has one or more overnights during the week.

Sample Language:

A.  Commencing on ___________, Parent A shall have physical custody of the minor child(ren) alternate weekends from Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until Monday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on ____________, Parent A shall have physical custody of the minor child(ren) each week from Wednesday, after the end of school/child care camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camp, or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Thursday, at the start of school/child care/camp(or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

C. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

*  Instead of referring to alternate weekends, a plan can refer to 1st, 3rd and 5th weekends of the month. This generally avoids any confusion about which parents has custody on any given weekend.

Comments:

This plan is sometimes referred to a “Freeman” order. It may be suitable where Parent B has not been very involved in the day to day care of the child and has a busy work schedule. Three to five year olds may show increased anxiety moving between parent’s homes. This does not necessarily reflect on whether the other parent is not a good parent or does not want to be with the other parent. Depending on the maturity of the child and the practicality of the exchanges these times can be negotiated so that Parent A only has the child one or two evenings in the week and has shorter or longer weekends.

“2:2:3” Joint Physical Custody for older children

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Week 2

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

Week 3

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

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The parties alternate weekends and each parent has the children two days in the week.

Sample Language:

A. Commencing on __________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on __________, Parent B shall have physical custody of the minor child(ren) each week from Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Friday, at the start of school/child care/camp (or at 8:00 a.m. if the children are not in school/child care/camp), when Parent B shall drop the child(ren) off at school/child care/camp or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below.

C. The parties shall alternate physical custody of the minor child(ren) during the weekends, from Friday, at the start the start of school (or at 8:00 a.m. if the children are not in school), until their return to school on Monday (or at 8:00 a.m. if the children are not in school) when the children shall be returned to their respective school or to the receiving parent’s residence, in the event the children are not in school.

Comments: 

The child spends no longer than three days/nights away from either parent.

“2:2:5:5” Joint Physical Custody For Older Children

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Week 2

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

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The parties alternate two and five day periods with the children. Each parent has two consecutive midweek overnights each week and alternate the weekends.

Sample Language:

A. In Week 1, commencing ________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. In Week 1 and 2, commencing ________, Parent A shall have physical custody of the minor child(ren) on Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until the following Wednesday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp:

C.  After the conclusion of Week 2, the two week rotation shall commence again with the physical custody schedule set forth above for Week 1.

B. Parent B shall have custody of the children at all times not designated as  Parent A’s time.

Comments:

The works better for well adjusted children who have a good attachment to both parents. It allows for joint physical custody but each child is only away from the non-custodial parent for five days.

Alternating Weeks -  Joint Physical Custody

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Week 2

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

Week 3

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

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Sample Language:

Commencing __________, and on alternate weeks thereafter, Parent A shall have physical custody of the minor child(ren) from Monday at the start of school/child care/camp, or from 12:00 noon if the child(ren) are not in school/child care/camp, until Parent A returns the child(ren) to school the following Monday at the commencement of school, or 12:00 noon if the child(ren) is not in school/child care/camp, when Parent A shall return the child(ren) to Parent B’s residence. Parent B shall have custody of the child(ren) at all other times.

Comments:

The children may need to have mid-week contact with the non-custodial parent. This schedule can be altered to provide for a mid-week evening or overnight with the non-custodial parent.

Step up Plans

A frequently encountered problem is that a plan you develop now may not necessarily be appropriate in the future. For example, a plan for young children which permits the non-custodial parent limited overnights may not be appropriate when the children are older. A court may not be willing to change the status quo simply because the children have grown up and are better able to transition between households. One way of dealing with this is to create a “step-up plan” that provides increased periods of custody to the non-custodial parent when the children reach a certain age.

Step-up plans are particularly useful in reaching settlements where there are concerns about the parenting abilities of the non-custodial parent or the psychological harm that moving between two households will have on a child. Step up plans foster a sense of trust, responsibility and reliability as the non-custodial parent and the children familiarize themselves with the new routines and new households.

Step up plans are also useful to encourage parental responsibility where there are substance abuse problems or visitation has to be monitored because a parent has endangered the child. These step up plans should be drafted to allow the non-custodial parent increased time when they have met specific goals e.g. they have remained clean and sober for six months.

Holidays

It is common for parents to alternate holidays each year with one parent having a holiday in even years and the other having it in odd years. Many holidays are celebrated on a Monday and parents elect to extend the previous weekend. However, if you have a parenting plan which provides for switching custody on alternate weekends you will have to decide whether the weekend or the holiday schedule take precedence.

Typical holidays and special days include Mothers/Fathers day, Memorial Day, children’s birthdays, July 4th, Labor Day, Halloween, Thanksgiving, Christmas Eve and Day, parent’s birthdays and family reunions. Jewish holidays may include Passover, Rosh Hashana and Yom Kippur. In deciding on issues relating to holidays, form "Children’s Holiday Schedule" FL-341 (C) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/

During the winter vacation many parents elect to divide the winter vacation. Since the midway point may or may not include Christmas Eve and Christmas Day parents may also elect to split these days.

During the summer recess many parents provide that either parent may have the children for two or three continuous weeks provided that they give each other sufficient notice in advance of their plans. If their plans conflict one parent’s choice prevails in odd years and the other parent’s choice prevails in even years.

Sample Legal Custody Plans

In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/ Where both parents are cooperative and are able to communicate the following joint legal custody language can be used.

Sample Language:

The parties shall have joint legal custody of the child(ren). In exercising joint legal custody, the parties shall make every reasonable effort to foster feelings of affection between themselves and the child(ren). The parties shall cooperate and consult with one another so as to reach mutual agreement on all issues affecting the health, education and welfare of the children, including but not limited to the following:

(1) Enrollment or termination in a particular private or public  school/child care/summer camp;

(2) Beginning or ending the regular practice of religion;

(3) Commencement of psychiatric, psychological or other mental health counseling or therapy;

(4) Authorizing the children’s drivers’ licenses;

(5) Passport applications;

(6) Enrollment in regular extracurricular activities;

(7) Non-emergency medical or dental treatment, other than routine check-ups.

How do we modify a parenting plan if circumstances change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and they may also have to show that there has been a substantial change of circumstances if the plan gave one parent primary custody.

The other parent wants to move out of state. What can I do?

In recent years several Court decisions have set forth the following rules regarding move-aways. If there has been no court order, the Court looks to the best interests of the children.If there has been a Final Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the original Court order provides for joint custody. The Courts have not specifically defined what percentage of time-sharing qualifies as joint custody. One Court decided that a plan which gave a father alternate weekend visitation and an overnight every week amounting to 30% custody was not joint custody but “liberal visitation.”
If the parents have joint custody, the court looks afresh at the situation and decides what is in the best interests of the child. However, if one parent has primary physical custody (generally more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child. Only then will the Court review the best interests of the child.

However, the law in this area is far from settled and if you are negotiating a parenting plan you should ask your attorney for advice about what will happen if one parent decides to move away.

Links

www.lasuperiorcourt.org

www.courtinfo.ca.gov/forms/

http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm

www.supreme.state.az.us/dr/Text/ModelPTPlans.htm

www.warrenrshiell.com

© 2006 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

Download california_custody_and_visitation.doc


Separation is when couple decide the marriage is over

The Fourth District Court of Appeals in California says that the date when a couple becomes legally separated is based on when they privately decided to separate rather than the date they set for court purposes. This decision reverses an earlier decision by a San Diego Judge in Orange County Superior Court.

The case involves Maureen and Samuel Manfer. They were married in 1973 and then mutually decided shortly after their 31st wedding anniversary in 2004 that they were separating. Samuel moved out, but both of them decided to keep the news of their separation private until after the end of the year because they didn’t want to upset their children before the holidays. The couple did not have sex together or share their finances, but they attended social occasions and traveled together from time to time.

When Samuel filed for divorce in April 2005, he cited March 15, 2005 as their date of separation. Maureen disagreed, saying that their separation date was July 1, 2004. The date of separation was significant, seeing as Maureen had made more money than Samuel, so Samuel was entitled to half of her income during the time that they were together—whether this time was until July 2004 or March 2005.

California is a community property state. This means that unless a couple signed a premarital agreement before they were married, each spouse is entitled to half of the net value of all property acquired and income earned during the duration of their marriage.
Read the case

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement. For more information visit www.la-familylaw.com