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Hiding AssetsHiding assets in a California divorce? Divorcing couples are required to divide their assets in order to go their separate ways. Since California is a community property state, anything accumulated during the marriage must be divided equally. Sounds simple, right? What if you suspect your soon-to-be ex is hiding assets to which you are legally entitled? It happens more than you might think, and that is precisely why effective legal representation is a must.

Dirty Tricks

The higher earning spouse may have a number of sneaky maneuvers planned in order to keep more than his or her fair share of your accumulated earnings:

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grandparent visitationGrandparent visitation and rights in a divorce. A divorce can have far-reaching effects for people beyond the couple that is calling it quits. Children may be moved away from familiar neighborhood schools, friends, and extended family – grandparents, in particular. This can be devastating to not only the children, but to the grandparents, as well. In some cases, divorced parents are eager to include grandparents in their children’s lives, but what if parents do not view grandparents as a valuable asset to their children? Do grandparents have any rights to visitation following a divorce? Do grandchildren have a right to interact with their grandparents? The questions are more complicated than some people realize, and a solution may not be viable without the assistance of an experienced family law  attorney.

When One or Both Parents Object to Grandparent Visitation

The rights of parents are generally supported over those of non parents. When both parents prefer that grandparents not be granted visitation, or if only the custodial parent objects to it, convincing a judge otherwise can be extremely challenging. The court may grant visitation to grandparents only under limited circumstances:

  • When a relationship already exists between the grandchildren and grandparents that “has engendered a bond” wherein the best interests of the child would be promoted through such visitation;
  • The wishes of the parents and their right to make decisions about their children are balanced with the best interests of the child in allowing visitation with a grandparent.

These legal parameters may be interpreted differently depending on individual circumstances, of course. Preparing a strong case requires time and careful thought.

History of Judicial Thought on Grandparent Visitation

California courts have ruled on several general issues that have bearing on grandparent visitation.  The first has to do with whether or not grandparents must prove that parents are unfit in order to gain visitation rights. On this matter, the court’s ruling was that even a fit parent’s decisions ought to be subject to court review. Proving fitness or lack thereof is not necessary for grandparents to file a claim for visitation.

The second issue revolves around the potentially onerous stipulations parents might place on grandparent visitation. In such circumstances, the courts may rule in favor of grandparents.

Finally, the courts have stated that when parents refuse grandparent visitation out of spite or anger, they may rule in favor of grandparents.

How and When to File for Grandparent Visitation

If an active case for divorce or legal separation is pending, grandparents are required to join that family law case.  Otherwise, grandparents must complete several forms in order to file a new case. Continue reading →

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smartphone evidenceSmartphone Evidence and your divorce case. Have you ever used your smart phone to send a nasty message? Have you ever sent that nasty message to your soon to be ex spouse? If you are heading into a divorce, or are in the middle of one right now, it would be foolish and costly to sabotage yourself with nasty messages using your smart phone. Unfortunately, in the heat of a dispute, that is exactly what many people do. If you wish to file for divorce and believe text messages or other postings may be used to impact the proceedings, an experienced divorce attorney can help.

Smartphone Evidence – The Problem

Nine out of 10 leading divorce lawyers report an uptick in the number of cases they have seen in the past three years in which smartphone evidence, particularly text messages and social media posts, have been used. The president of AAMI, a group of professionals who handle prenuptial agreements, separations, property divisions, and like matters calls the problem “spontaneous venting.” Many of the comments sent can lead to problems for the sender in a divorce proceeding.

While email typically gives the sender a bit more time to reflect before hitting the send button, it is one more way that people get themselves into trouble. When getting a divorce, remember:  Anything in writing might someday make its way before a judge. If you do not want the judge to read it, you probably should not be writing it in the first place.

How can Smartphone Evidence Hurt Your Situation?

Messages you have sent and pictures you have posted may be used to show your state of mind, to reveal who you may have communicated with with or where you may have been, or even to indicate contradictions in your disclosures to the court. Also, in California, child custody decisions are made with the best interests of the child in mind. If you have revealed yourself to be a crazy maniac, or, worse, a threatening and potentially violent individual, it will not bode well for you in front of a judge.

Is Smartphone Evidence an Invasion of Privacy?

You have sent the text message or posted the comments and photos. Now they are on someone else’s device. If it has hot been deleted, it may be printed out and submitted to the court. Even if deleted, it is possible to subpoena the cell phone company to preserve the content of cell phone messages using the Stored Communications Act in conjunction with state law. Continue reading →

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divorceAll marriages experience ups and downs, but when are things serious enough to consider a divorce? Research indicates common themes in the literature predictive of divorce:

Feelings of Contempt: If you or your spouse resorts to contemptuous feelings and behaviors when dealing with problems, the marriage may be at risk. Regardless of the issue at hand, eye rolling, sarcasm, berating, and name-calling lead to a feeling of helplessness. Problems cannot be solved in this environment.  Passive-aggressive statements are yet another symptom of contempt.  Instead, couples should address complaints without blame or criticisms.

Scorekeeping: When one spouse is more focused on keeping score in a marriage than on building a loving relationship, it can spell disaster. Successful marriages cannot be centered on winning and losing. Spouses should instead consider strong communication, love, and forgiveness a win-win.

Differing Goals: Does one of you want a big family and the other hate the idea of kids?  Does one want to party whenever possible, and the other prefer cozy nights at home? Is traveling the globe the ultimate dream for one of you, while the other is completely comfortable planted in the neighborhood in which you have always lived? When couples have huge differences in the things they want from life, if can make for a challenging marriage.

One Person does all the Compromising: Does one person always hold out to get the final say on the tv shows you watch or the restaurants you go to? Does one spouse feel disappointment that the other shows minimal interest in his or her needs on a day-to-day basis? Compromise is a key factor in successful marriages, but when one spouse is constantly expected to give in to the other’s desires, it can lead to feelings of resentment. It makes one wonder about the motivations for staying with someone who is not concerned about who you are or what you need.

Bad Views Rule: Research indicates that couples who remember the sweet, tender beginnings of their relationship, even when going through tough times, are more likely to survive. Alternately, if the focus is on the shortfalls of the other spouse and the mutual admiration and respect has dissipated, the marriage is in trouble.

Debt: One of the biggest stressors to any marriage is money trouble, particularly if one spouse is a big spender and the other is not. In that circumstance, the risk for divorce is 45% more likely. Setting and living within a budget can save unnecessary arguments and harrowing stress.

A Lousy Sex Life: When antagonism, or a simple lack of interest in your spouse, results in a limited or nonexistent sex life, the marriage is in trouble. Healthy communication and the ability to enjoy one another intimately can build a bond that helps couples through challenging times.

You do Not Spend Time Together: Couples who do not share hobbies and interests, as well as other friendships, are at greater risk of divorce. Particularly, when one spouse purposefully becomes detached, the relationship should be evaluated.

Stonewalling: Spouses who evade one another or punish with the cold shoulder are avoiding solving their issues. Instead of open and clear dialogue, problems become swept under the rug, where they fester until they have to be addressed—usually with anger.

Wedding Planning Issues: Beware if planning the wedding became more important than the relationship between the couple. Continue reading →

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Substance Abuse and DivorceAre you considering divorcing a spouse who has trouble with substance abuse? Anyone experiencing a divorce can tell you that there are all kinds of mitigating factors that may impact divorce proceedings and outcomes. One particular issue that can have a substantial bearing on your divorce agreement is addiction. When one or both partners suffer from drug or alcohol issues, matters may become more complex than ever. A good divorce attorney is your best bet when facing these issues.

Marriages Ruined by Substance Abuse

The statistics on marriages when substance abuse is involved are not encouraging:

  • Close to 30 million people are married to an alcoholic or drug addict.
  • Nearly 10% of divorces are related to substance abuse;

Is Divorce the Right Choice for You?

Experts advise considering divorce under certain key circumstances involving addiction:

  • Married life is substantially impacted due to substance abuse;
  • Self destructive behavior has long-term or severe impacts on you and your family;
  • Your spouse refuses to participate in counseling sessions, or attends sessions with negligible outcomes;
  • Your spouse lies, hides things, fails drug tests, and/or is responsible for “disappearing” money;
  • Your spouse engages in dangerous behaviors while under the influence of prescription drugs, illegal substances, or alcohol;
  • Cheating, beating, or other irresponsible behavior accompanies substance abuse;
  • You find yourself embarrassed and unwilling to face your family and friends due to symptoms and events related to addiction;
  • You make excuses for your spouse’s addiction and related behaviors on a regular basis.

Before Filing for Divorce

As you embark on this difficult period of your life, try to establish a strong support network of family, friends, and professionals. Groups like Al-anon, Nar-Anon, and Families Anonymous can help you through the tough days ahead. In addition, some practical things you should consider include:

  • Securing your finances;
  • Helping your spouse to find professional services;
  • Documenting any issues connected to the addiction;
  • Finding support for your children as they experience the divorce;
  • Hiring a responsive attorney.
Your Divorce Agreement

In addition to the typical separation of property and debt issues that all couples face in divorce, (California is a Community Property state) when you divorce an addict, additional measures must be taken, especially when dependent children are involved. It is essential that your divorce agreement include required participation in a reliable drug- and/or alcohol-testing program.  Visitation must be contingent on clean reports, or must be supervised.

Furthermore, you should consider the possibility that the mention of divorce may result in more extensive drug or alcohol abuse. This, in turn, may lead to anger and potential violence. Be sure to secure a safe place to stay for yourself and your children. Continue reading →

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Tax and Divorce QuestionsAre you considering a divorce, but concerned about the tax implications? It is definitely a good idea to be aware of the financial fallout associated with terminating a marriage. An attorney experienced in family law and divorce can be of assistance with these and other questions you may have as you approach this life changing and economics-altering event.

If We Owe Back Taxes, Who has to Pay Them?

Regardless of who earned all or most of the money when you filed a joint return, you may be responsible for money owed, even if the divorce decree states otherwise. It may come as a surprise that your tax refunds in the future may be used to pay your spouse’s state or federal tax debts. However, you may file for relief from joint liability under certain circumstances.

Can I File an Individual Tax Return if the Divorce is Not Final?

The short answer is yes, if you have a Decree of Separate Maintenance, Judgment of Legal Separation, or Degree of Separation. However, it may behoove you to investigate the possibility of jointly or filing married but separated. Naturally, once the divorce is finalized, you may file as either single, head of household, or widow.

For Tax Purposes, Who Claims the Amount Paid in Spousal Support and/or Child Support?

When it comes to spousal support, the receiving partner must claim that amount as income, whereas the paying partner may deduct all payments. It is therefore a good idea to keep accurate records of all payments and avoid paying in cash. On the other hand, child support payments do not affect taxable income one way or the other.

Who Claims the Dependents?

By default, the parent who has physical custody of children is allowed to claim them on his or her taxes. That being said, parents may come up with their own arrangements. Some versions may include:

  • Each parent claiming all dependents on alternating years;
  • Each parent claiming one or more dependent every year;
  • Evaluating the tax benefits of each parent’s claim and potentially sharing the savings.
Are Other Expenses Associated with the Divorce Deductible?

In some cases you may be able to deduct fees paid to your attorney, accountant actuary or appraiser. In each case, fees associated with tax advice related to your divorce are deductible.  Additionally, some fees paid related to property settlements, such as costs associated with preparing and/or filing a deed, are deductible.

Who Pays Taxes on Shared Retirement Income?

If you are dividing retirement benefits earned by one spouse, you generally utilize a Qualified Domestic Relations Order (QDRO). This arrangement allows funds to be distributed to two different locations in two separate checks, one for each of you. If the distribution occurs in one check, the retired spouse will be responsible for all taxes on the retirement income. Continue reading →

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support PaymentsSupport payments in California. Leaving a marriage can be a difficult decision. It is not made any easier by the financial constraints associated with dividing a household. Living separately is obviously going to cost more, and in many cases that means both parties are going to have to adjust the living standards to which they have become accustomed. How are the financial decisions made in California divorce cases? If you are seriously considering divorce, it is time to see an experienced family law attorney.

How are Spousal/Partner Support Payments Calculated?

California Family Code section 4320 lays out specific considerations to factor in when determining how much spousal or partner support payment is appropriate:

  • Time: How long has the marriage or domestic partnership existed?
  • Need: How can each partner best experience an equivalent standard of living?
  • Liabilities: What debts will each partner keep?
  • Assets: Who, if anyone, will stay in the home? What other property is being divvied up?
  • Employment: Will both partners be employed, or will one have primary childcare responsibilities?
  • Previous career advancement: Did one partner support the other through school or licensing programs to propel a career?
  • Training: Will on partner need education or training in order to obtain meaningful employment?
  • Age/Health: Do one or both partners have particular health needs that must be addressed?
  • Domestic Violence: Was there mental or physical abuse in the relationship?
  • Tax Impact: Because tax laws do not recognize domestic partnerships, will tax implications be favorable or unfavorable?

Temporary or Permanent Spousal Support Payments

Temporary support payments may be assigned while a case is pending; judges typically use a formula specific to their own county to make a calculation for the appropriate amount. Once the case is finalized, “permanent” support payments may be ordered based on the factors listed above. Do not be fooled by the term permanent. In this case, it simply means the order becomes valid once the divorce is finalized. It may or may not have time limits.

Changing the Support Payments

Imagine that after the divorce, the person paying support loses a job, or the person receiving support payments inherits a windfall. Either individual may, at some future time, experience a significant change in financial circumstances, prompting a request to change the amount of support. If both partners agree to the changes, a simple stipulation written up and given to the court will result in a new order relatively quickly. On the other hand, if there is a dispute, the individual requesting the change must file a motion with the court. This is something that should be done sooner rather than later, as changes to the order cannot be made retroactively. Continue reading →

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AnnulmentAnnulment versus divorce. Divorce makes many people wish they could erase their marriage altogether. The fact is that some individuals actually can. In specific circumstances, couples may seek an annulment, which essentially pronounces that what had previously been considered by all to be a marriage never existed at all. This unique legal maneuver requires the assistance of an experienced family law attorney.

Who Qualifies for an Annulment?

Legal annulment is not available to just anyone. Grounds for annulment are quite explicit:

  • When the partners are closely related by blood;
  • When one partner is engaging in bigamy (is already married to someone else).
  • When the marriage occurred prior to the eighteenth birthday of one or both of the individuals;
  • If the marriage was based on a fraud, meaning one person misled another to convince them to marry;
  • If one spouse suffers an incurable physical incapacity, or is unable to engage in sexual relations;
  • When one or both individuals is of unsound mind, meaning he or she is incapable of understanding the responsibilities and overall nature of marriage;
  • If one person forced the other into the marriage.

Statute of Limitations for an Annulment

The law does have timelines to file for annulment, depending on the reason for the request:

  • Bigamy: You can file at any time;
  • Age: If you married prior to your eighteenth birthday, you must file within four years after turning 18;
  • Fraud: You must file within four years of ascertaining the fraud;
  • Physical Incapacity: You must file within four years of the marriage;
  • Unsound Mind: You can file any time;
  • Forced Marriage: If you were forced into the marriage, you must file within four years.

What About the Children?

Just as the marriage is erased, the legal presumption of paternity for your children is removed in annulment, as well. Therefore, the judge must grant parentage. The court will also establish custody, visitation, and child support parameters.

Division of Assets

Since you will legally never have been married, you will not be able to take advantage of California’s Community Property laws. Likewise, you will not be entitled to your partner’s pension, retirement benefits, or any form of spousal support or alimony.

Punitive Spouse Status

In certain rare cases, you may be able to prove that you believed the marriage to be legal under California law, and you may be able to argue that you are entitled to typical marriage assets and support. Continue reading →

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Spousal SupportDetermining Spousal Support. Divorcing couples often have questions regarding the financial obligations of a higher-earning spouse toward a lesser-earning spouse. In some instances, one spouse may not have held gainful employment at all, leaving him or her with potential financial woes were it not for spousal support ordered through the courts. This complex issue requires the consideration of multiple factors. An experienced divorce attorney can help you maneuver the paperwork and pitfalls of this and other matters you will encounter in the course of a divorce.

Factors Considered in Determining Spousal Support

Just how much financial support might the court order, and for what period of time? Factors examined will include:

  • The duration of the marriage/domestic partnership;
  • Necessities required for each person to maintain a similar standard of living;
  • Current and potential earnings of each person;
  • Other obligations, such as child care, that would impact the ability to work;
  • Health issues and age of the individuals divorcing;
  • Assets and debts;
  • Previous support from one spouse to another while getting an education;
  • History of domestic violence;
  • Tax issues.

How Long Will Spousal Support Payments be Ordered?

The courts will look at the above considerations and make a determination as to the amount and duration of payments. Generally speaking, payments will last for at least half as many years as the length of the marriage. Some marriages of lengthy duration may require support payments until the remarriage or death of the receiving spouse.

Changes in Support in Future Years

Either partner may request changes in the amount of support at a future date. There are some basic situations in which this might occur:

  • The financial status of one of the individuals changes significantly, giving the court reason to consider alternative arrangements;
  • The individual receiving support remarries or enters a domestic partnership;
  • The court issued a Gavron Warning during the initial divorce proceedings, indicating that the supported spouse must work toward self-sufficiency within a reasonable period of time, at which time support would be decreased or eliminated.
What if the Person Ordered to Pay Support Fails to do so?

If an individual ignores a court order to pay spousal support, his or her wages could be garnished. As a last resort the payer could be cited for contempt of court, and jailed for that reason.

If Wages are Garnished, can Employers Punish an Employee?

Employers are not allowed to discriminate against employees due to a court ordered garnishment. An individual who experiences retaliation or loses a job under these circumstances may have a legal case against his or her employer. Continue reading →

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Divorcing missing spouseDivorcing a spouse that is missing? Is it possible to divorce your spouse when you have no idea where he or she is? The short answer is yes, but you will have to go through some extra work, wait about six months, and you may not get a final court order on the division of resources, child custody issues, and child support. In this situation, hiring an experienced divorce attorney is a must.

Divorcing by Publication

When a spouse disappears with no forwarding address, divorce may be obtained by publication. The Petitioner (the person seeking a divorce) must demonstrate that a diligent search has been conducted and the missing spouse was unable to be located. Therefore, that spouse cannot be served, nor can the divorce papers be delivered by certified mail.

Divorcing a Missing Spouse? What is a Diligent Search?

The courts expect that a sincere effort to locate the missing partner has occurred. Thus, a number of steps must be taken:

  • A thorough search of phone books and directory assistance in the area where the Petitioner lives and where the missing spouse was known to have lived last;
  • Talking to friends and relatives who might have knowledge of the missing spouse’s whereabouts;
  • Contacting the post office in the area where the missing spouse lived to ask for a forwarding address;
  • Investigating tax and property records to see if the absent spouse owns any property;
  • Communicating with previous landlords and employers about the location of the missing spouse;
  • Checking voter registration records;
  • Hiring a private investigator to try to find the missing spouse.

If, after completing these steps, your spouse still cannot be found, you may submit an Affidavit of Diligent Search to the court. This documents any and all steps you have taken to locate your spouse.

Filing for Divorce

At this stage, you must complete an Ex Parte (Without Notice) Application for Publication of Summons and several other legal documents in order for the court to issue an Order of Publication. The Order allows for the publication of the summons in the newspaper, and it must be published weekly for a total of four consecutive weeks. There must be a minimum of five days between each publication.

Your Spouse’s Rights

Following the four weeks of Publication of Summons plus 28 days, your spouse has another 30 days in which to file a response. Barring any response, you may file a Request to Enter Default Dissolution of Marriage. The divorce will become final six months from the date of the first publication of summons. Continue reading →

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