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July 2011
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November 2011

Coming clean on 'dirty DUIs' in Contra Costa County

The Los Angeles Times reports on a whistle-blower who tells how a private detective arranged for men to be arrested for drunk driving at the behest of their ex-wives and their lawyers — and that entrapment using decoys was only one of many alleged misdeeds. Read full article

A 'dirty DUI'

David Dutcher says his 2008 arrest on suspicion of drunk driving was a setup orchestrated by a private detective who is the subject of a state and federal criminal investigation. (Michael Macor, The Chronicle / October 17, 2011)

 

 

 


Alimony in Massachusetts Gets Overhaul, With Limits

This from the New York Times (for full article) Gov. Deval Patrick on Monday signed into law new limits on alimony in Massachusetts, sharply curbing lifetime alimony payments in divorce cases and making a series of other changes to a system that critics considered outdated. Linda Lea Viken, president of the American Academy of Matrimonial Lawyers, said the law represented an about-face that could reverberate across the country. Most states, she said, do not have such specific guidelines for determining the length of alimony. “They’ve gone from the extreme of having it set in permanency to now being specific about when it terminates,” Ms. Viken said of Massachusetts. More details can be found from http://www.massalimonyreform.org/

 


Do my divorce lawyers legal fees have to be recorded contemporaneously and itemized in a bill?

Baroness Shackleton and Sir Paul McCartney

Fiona Shackleton and Sir Paul McCartney. Sir Paul confirmed that he was happy with Lady 

 

The answer would appear to be -- it depends whether your divorce is taking place in California or England and Wales. Here is a truly amazing article from the English Telegraph. This is an extract from the article:

"Madonna and Sir Paul McCartney appear to have been charged hundreds of thousands of pounds more than the hourly rate would have demanded, documents show, a practice known as “marking up. The Conservative peer, who represented the Prince of Wales and the Duke of York in their divorces and remains solicitor to Princes William and Harry, appears to have charged her clients more than twice as much as the rate for the actual number of hours she had recorded as having spent on their cases, according to internal time sheets. The sheets, seen by The Daily Telegraph appear to show that a six-figure sum was added to bills of both Madonna and Sir Paul, as well as at least seven other clients in a column headed ''mark up. In one case a £14,000 bill for work on the former Beatle’s divorce from Heather Mills shows a “mark up” to £150,000." Read the full article.

Just to let you know I am an English Solicitor admitted to and practicing in California and I have NEVER included such a mark up on any of my bills. 

 


If I have full custody do I still have to pay child support? A case of life imitating art.

If you are a successful actor earning between $475,000 to $790,000 per month and your wife earns nothing the answer is yes. That is the opinion of the California Court of Appeal in the case of actor Jon Cryer who plays Alan on Two and a Half Men. The couple married in 2000 ands have a son.  They divorced in 2004.  In 2009 the son was taken from Cryer's wife, Sara by child protective services, and placed with Jon.  Sara's only income was the child support she received from Jon.  Jon took Sarah to court to have his child support reduced.  In response Sarah argued that without child support from Jon she would be destitute. An important fact the Court considered was that Cryer had gained custody in a dependency proceeding the goal which is eventual reunification. The Court stated:

The amount of child support normally payable is calculated based on a complicated algebraic formula found at Family Code section 4055.1Although this formula is referred to as the statewide uniform “guideline” (§ 4055), “guideline” is a misleading term. (In re Marriage of Hubner(2001) 94 Cal.App.4th 175, 183.) The formula support amount is “presumptively correct” in all cases (see §§ 4057, subd. (a), 4053, subd. (k)), but “may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053 . . . .” (§ 4055, subd. (b).)

Section 4053 sets forth a number of principles, foremost among them being the protection of the child’s best interest: “The guideline seeks to place the interests of children as the state’s top priority.” (§ 4053, subd. (e).) Among other principles, section 4053 also provides, “ (a) [a] parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life”; “(d) [e]ach parent should pay for the support of the children according to his or her ability”; and “(f) [c]hildren should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.” In light of these principles, departure from the standard child support formula may be appropriate when application of the formula “would be unjust or inappropriate due to special circumstances in the particular case” (§ 4057, subd. (b)(5)), so long as the variance is consistent with section 4053.

At the time of the initial hearing on the requested modification, Jon was paying Sarah $10,000 per month for child support. In bringing his order to show cause, Jon argued that there had been a material change in circumstances due to the dependency proceedings, which caused his time share to increase dramatically. A child support order may be modified when there has been a material change of circumstances. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234.)

The trial court (at least implicitly) acknowledged there was a change in circumstances. As noted in the court’s statement of decision, Sarah’s time share had decreased from 65 percent to 4 percent.

Jon was successful in persuading the trial court to modify child support, but he takes issue with the amount of the modification. As required by section 4056, subdivision (a), the trial court’s statement of decision included the amount of support that would have been ordered under the guideline formula: $1,141 per month, payable from Jon to Sarah. This comparatively low amount was largely the result of Sarah’s then 4 percent time share. The court departed from this guideline amount, finding that it would be “unjust and inappropriate” under the special circumstances of the case to modify Jon’s obligations to such an extent, and instead ordered a reduction from $10,000 to $8,000.

We find that the trial court’s decision was well-reasoned and consistent with the principles of section 4053, especially the principle of protecting child’s best interest. Jon is correct that the modification was unusual. So far as we are able to determine, no published California case has examined the propriety of an order giving above-guideline child support to a parent with a minimal time share. In many cases, such an order would be improper. But, as noted above, this was not a typical case.

The “special circumstances” exception of section 4057, subdivision (b)(5) gives the trial court “considerable discretion to approach unique cases on an ad hoc basis.” (County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1106; see also In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043 [“the court, in child support cases, is not just supposed to punch numbers into a computer and award the parties the computer’s result without considering circumstances in a particular case which would make that order unjust or inequitable”].) The trial court has “broad discretion” to determine when special circumstances apply. (In re Marriage of de Guigne(2002) 97 Cal.App.4th 1353, 1361.)

This was a unique case that presented special circumstances, particularly when viewed from the trial court’s perspective in late 2009. Prior to initiation of the dependency matter, child spent most of his time with Sarah. At the time of the November hearing, Sarah’s custody and visitation rights were in the control of the dependency court and DCFS, and were subject to potentially sudden change. “The parent-child relationship and its attendant duty of support do not end when a child is declared a dependent of the juvenile court and removed from the parents’ custody. [Citation.] To the contrary, the chief objective of the dependency law is the preservation or reunification of the family whenever possible.” (County of Ventura v. Gonzales (2001) 88 Cal.App.4th 1120, 1122.) An order granting a large decrease of child support could have jeopardized the objective of the dependency action. Substantial evidence supported the conclusion that Sarah would have lost the house in which child had lived much of his life, and would have faced other substantial burdens that likely would have impacted her attempts at reunification. Child’s interest was best served by an order that promoted the objective of reunification, as this one did. . . .

In addition, given the posture of the dependency matter, the trial court did not abuse its discretion by finding that child’s best interest was served by a level of child support that would allow Sarah to make the payments necessary to avoid losing her family home. A “‘child’s need is measured by the parents’ current station in life’ [citations],” and “‘where the child has a wealthy parent, that child is entitled to, and therefore “needs” something more than the bare necessities of life.’ [Citation].” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 293(Cheriton).) There was a benefit to child in ordering this level of support, and the fact that Sarah obviously benefited did not per se invalidate the order. (See In re Marriage of Hubner (1988) 205 Cal.App.3d 660.) Depending on the status of Sarah’s visitation and custody situation, child could stay in her house, a house he was used to and which was commensurate with the high standard of living to which he was accustomed. In light of his father’s substantial income and wealth, child “needed” more than an apartment, which was Sarah’s only likely housing option if child support were decreased to guideline levels. An order that resulted in child’s spending time with his father in an opulent abode and time with his mother in a low-rent apartment would have conflicted with the principles of section 4053.

The Court also upheld teh award of $60,000 in attorney fees to Sara:

In reviewing an attorney fee order, the record must reflect that the trial court considered the factors set forth in sections 2030 and 2032. (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 242.) The purpose of section 2030 is to ensure parity. “The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength.” (Id. at p. 251.) As for section 2032, it not only requires that the court consider the financial resources of each party, but also requires a broader analysis of the parties’ relative circumstances. (172 Cal.App.4th at p. 254.) From our review of the record, we are satisfied that the trial court analyzed these issues thoroughly. As noted by the court, the incomes of the parties were highly disparate. The case had been litigated very heavily, and numerous orders to show cause and motions were filed in the relatively short time period since modification was first requested. Jon expended a great deal of money on attorney fees and costs. Without sizable fee awards, Jon likely would have litigated Sarah out of the case, a result contrary to the objectives of sections 2030 and 2032. Based on the circumstances, the fee awards ordered by the court were reasonable.

 To read opinion Download Jon cryer

Divorce and Money

Los Angeles Family Law Attorney

Divorce Lawyers|Attorneys Los Angeles, Beverly Hills

California Prenuptial, Prenups

 


Domestic Partners Taxes

How do registered domestic partners determine their gross income for 2010?

Registered domestic partners must each report half the combined community income earned by the partners. In addition to half of the community income, a partner who has income that is not community income must report that separate income.

For more information see IRS http://www.irs.gov/newsroom/article/0,,id=245869,00.html

 


Can registered domestic partners or same-sex spouses whose marriage is recognized under state law file federal tax returns using a married filing jointly

According to an IRS publication: No. Registered domestic partners cannot file using a married filing separately or jointly filing status, because they are not spouses as defined by federal law. Likewise, same-sex partners who are married under state law may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as spouses.

 


Can a registered domestic partner qualify to file his or her tax return using head-of-household filing status?

According to recent IRS publication: Generally, to qualify as a head-of-household, a taxpayer must provide more than half the cost of maintaining his or her household during the taxable year, and that household must be the principal place of abode of the taxpayer’s dependent for more than half of the taxable year. If registered domestic partners pay all of the costs of maintaining the household from community funds, each partner is considered to have incurred half the cost and neither can qualify as head of household. However, if one of the partners pays more than half by contributing separate funds, that partner may qualify as head-of-household.

Los Angeles Divorce Attorney

Los Angeles Family Law Attorney

Divorce Lawyers|Attorneys Los Angeles, Beverly Hills

California Prenuptial, Prenups

 


If a child is a qualifying child under section 152(c) of both parents who are registered domestic partners, which parent may claim the child as a dependent

According to an IRS: If a child is a qualifying child under section 152(c) of both parents who are registered domestic partners, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.

 


Is a registered domestic partner the stepparent of his or her partner’s child?

According to an IRS publication: If a registered domestic partner is the stepparent of his or her partner’s child under the laws of the state in which the partners reside, then the registered domestic partner is the stepparent of the child for federal income tax purposes.

 


Alimony in Massachusetts Gets Overhaul, With Limits

This from the New York Times (for full article) Gov. Deval Patrick on Monday signed into law new limits on alimony in Massachusetts, sharply curbing lifetime alimony payments in divorce cases and making a series of other changes to a system that critics considered outdated. Linda Lea Viken, president of the American Academy of Matrimonial Lawyers, said the law represented an about-face that could reverberate across the country. Most states, she said, do not have such specific guidelines for determining the length of alimony. “They’ve gone from the extreme of having it set in permanency to now being specific about when it terminates,” Ms. Viken said of Massachusetts. More details can be found from http://www.massalimonyreform.org/