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fraudulent claims of abuseNothing is worse than divorce. Actually, the only thing worse than a divorce is a nasty divorce, or a divorce in which one partner makes vicious attacks and cruel claims of abuse that never occurred. Either party may be guilty of this tactic, causing misery for the innocent spouse, and often for the children, as well. If your spouse is using false accusations against you to secure some advantage in divorce proceedings, it is critical for you to obtain aggressive, ethical legal representation right away.

Abuse and Protective Orders

An individual who claims that abuse, stalking, threats, or harassment is occurring may file an order with the court to keep the abuser away. This can come in three varieties:

  • Personal conduct orders simply order specific behaviors, such as battering, destroying property, and harassing, to stop.
  • Stay-away orders are designed to make the person under the order keep a specific distance away from the alleged victim. That means the restrained individual must stay away from the home, work, school, etc. of the person who filed the order.
  • Residence exclusions require the individual named in the order to move out of the home that is shared with the person who filed the order, taking only personal belongings.

Consequences to Persons Named in these Orders

The impact of this type of order on an individual is immeasurable. In addition to marring one’s reputation irreparably, it can result in losing access to one’s home and children. It will limit the ability to go particular places, to own or keep a firearm, and to maintain immigration status.

Fighting Back Against Untrue Abuse Charges

With an experienced attorney, it is possible to battle false charges and mitigate the consequences.  This will encompass several key strategies:

  • Preparing evidence to demonstrate the reality of the situation: There are many ways to show an innocent person in a positive light. Perhaps there are emails, texts, or other communications that demonstrate your true nature.
  • Witnesses to your relationship with your spouse may be able to verify your claims of innocence. They can testify as to their knowledge of events that may have been misrepresented, or that never occurred at all.
  • Alibi witnesses may be able to show that you were nowhere near an alleged incident.
  • Circumstances can be examined to determine what might have motivated an angry spouse to make false accusations. Was it out of spite for an affair? Was it to gain custody of the children?
  • Presenting the real you in a court of law can speak volumes. Fabricated allegations can be unnerving, but your confidence and honesty will be a useful tool in establishing your credibility.

Continue reading →

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custody of frozen embryosArizona is breaking new legal ground when it comes to who gets custody of frozen embryos in a divorce. A new law, which took effect July 2018, allows legal custody of the embryos to go to whichever partner wishes to use them to have a child. The other partner has no legal rights, responsibilities or obligations to any future child, including no duty of child support.

The controversial law has changed the landscape for many divorcing couples in Arizona. In California, what are the challenges facing couples with similar issues related to custody of frozen embryos?  An experienced local attorney can investigate the intricacies of California law with you.

Custody of Frozen Embryos – Case in Point

The first California case dealing with this issue occurred in 2015. It involved Mimi Lee, who was 46 years old and had lived through cancer treatments. She believed she would not be able to have biological children in the future if not for the frozen embryos. Lee’s ex-husband, Stephen Findley, objected to the use of the embryos, and he had a legal document to support his stance:  the couple had signed an agreement that the embryos would be destroyed in the event of a divorce.

The judge was required to wade through emotional testimony, accusations, and unrest, and ultimately ruled in favor of Findley. The embryos were to be destroyed. Her ruling was in line with what judges across the country have determined: One individual’s desire not to procreate outweighs another’s wish to have a child. With no federal regulations to provide guidance, state judges have had to base their decisions on the cases before them.

What Does Arizona’s Law Mean for Custody of Frozen Embryos for Californians?

Because the issues related to custody of frozen embryos are relatively new, precedents are being created with each new law and each new case. Maryland, Pennsylvania, and Illinois have all determined that women who wish to use their frozen embryos as a last chance to bear biological children should have a right to do so.  But New York, Tennessee, and New Jersey, among others, have found in favor of the party who wished to have the embryos destroyed. California, like other states, requires fertility clinics to provide consent forms designating the disposition of frozen embryos in the event of a divorce. However, Arizona’s new law puts the power of these consent forms into question. Will other states, like California, follow suite with similar legislation? That remains to be seen. As it stands now, future cases involving the custody of frozen embryos in California could go either way. Courts could choose to enforce previously signed consent forms, or could opt to provide one party the opportunity to procreate. Continue reading →

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spousal support changesHow can spousal support changes to the new 2019 tax law affect you? For anyone looking to get divorced in the near future, you may want to get things settled in the very near future—before the end of the year, in fact. That is because changes in federal tax laws are going to have a significant impact on anyone who receives or pays spousal support, potentially making negotiations for these payments significantly trickier.

Factors Considered When Determining Alimony

A number of issues must be weighed as the court makes judgments regarding spousal support payments. Naturally, disparate incomes are a central factor. Just a few of the many other items considered include:

  • The length of the marriage;
  • The ability of the lower-earning spouse to obtain employment without having an adverse impact on minor children;
  • The amount of support one partner gave another in the pursuit of education and/or career goals;
  • The health of the parties involved;
  • The tax consequences of any settlement agreement.

How Important Are the Upcoming Spousal Support Changes?

The implications of the new tax laws will be felt by all individuals paying or receiving alimony payments, and is expected to be be quite significant for couples who jointly earn between $60,000 and $500,000. Here is why:

For the past 75 years, alimony payments were deductible for payers, and recipients were expected to claim the money as income. Since the higher-earning spouse received a deduction, Uncle Sam collected taxes based on the lower tax bracket of the recipient. The couple jointly kept a bigger chunk of dollars earned with this arrangement. Starting in January 2019, all of that changes, and the payer will be unable to deduct alimony payments, making that money taxable at the earner’s higher tax bracket rates.  

Spousal Support ChangesThe Numbers Tell the Story

So, let us say in 2018, Spouse A, who is in a 33% tax bracket, is paying $30,000 in alimony. The deduction saves him or her $9,900.

Spouse B, who receives that $30,000, is in only a 15% tax bracket. The tax burden on alimony income is $4,500. The couple has jointly saved $5,400 that would otherwise be going to the federal government. In 2019, Spouse A will be paying the taxes on that $30,000, meaning there will be $5,400 less in the joint coffers to divide between the divorcing spouses.

Do not be fooled into thinking that Spouse B will be making a killing by keeping that extra $4,500.  Experts predict that alimony negotiations will take all of this into account, meaning each spouse will take a hit. Presumably, a 2018 alimony requirement of $30,000 will be significantly less in 2019 because the government’s chunk of the money will have to be factored in. Continue reading →

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pet custodyPet custody in a divorce was not unlike the all too familiar division of property, splitting up the furniture and deciding who gets the car. For some couples, things got significantly more challenging when it came to deciding what happens to the family pets. If you are besieged with this issue, a local divorce attorney can help.

Pet Custody Previous to This Law

In the past, pets have been considered property, to be given to one party in exchange for something of equivalent value. That has been markedly dissatisfying to many divorcing couples as well as to attorneys and judges who have witnessed the emotional strings that are attached to many animals who are truly considered part of the family. One attorney noted that clients have spent thousands of dollars trying to secure a beloved pet, with one woman spending more than $30,000 in a legal battle for custody. The fact of the matter is, judges have struggled with making the right decision in these circumstances, as well.

Methods to Determine Pet Custody

Some of the strategies used in court illuminate just how difficult this decision can be. Some of the ways judges have approached the decision include:

  • Putting the pet in between the divorcing spouses to see which person the pet prefers;
  • If there are two pets, splitting them up and giving one to each partner;
  • Assigning custody arrangements by alternating weeks or months;
  • One person is assigned custody, and the other is given visitation privileges;

Pet Custody and Impacts on the Pet

Divorce can be very stressful, and not just for the humans involved. Animal advocates point out that significant changes can take a toll on any pet’s well-being, leading to depression and other signs of anxiety, including:

  • Excessive sleeping;
  • Declining appetite;
  • No interest in the usual daily activities, like taking walks;
  • Unusual whimpers or cries;
  • Having accidents indoors;
  • Unusual grooming, licking, or self-biting.

AB 2274

Assembly Bill 2274, recently signed into law, takes more factors into account than previous law, which viewed the pet based on its financial value. Now, the animal’s well being, as well as issues related to the care of the animal, will be weighed. Is the animal bonded to children? If so, it may go where the kids go. Are there multiple pets in the home? Are they bonded to one another? What would the impact of splitting them up be?  Who was responsible for the feeding, grooming, and general care of the pet? Who took the animal to the vet? Who has the financial and time resources to provide continued care for the pet? All of these factors may be considered as the pet’s ultimate location is determined. Continue reading →

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long term spousal supportLong term spousal support and celebrity couples. What do the following couples all have in common?

  • Ben Affleck and Jennifer Garner;
  • Jenny Garth and Peter Facinelli;
  • Idina Menzel and Taye Diggs;
  • Courtney Cox and David Arquette.
  • Tom Cruise and Nicole Kidman;
  • Gwyneth Paltrow and Chris Martin.

If you guessed that they are all divorced, you are only half right. There is more to the story here, and it has to do with California law.

Long Term Spousal Support – The 10-Year Rule

When Jennifer Garner and Ben Affleck officially called it quits, it was precisely one day after their 10-year anniversary. Coincidence? Maybe. In California, there is some method to the madness of many couples who decide to end their marriages just after the 10-year mark. It has to do with spousal support, and for the lesser earning spouse, remaining married for any time over 10 years changes the statute in connection with long-term spousal support. In the case of the celebrities listed above, each couple lasted just past 10 years.

Understanding Long Term Spousal Support

California law (Family Code Section 4336(a)) provides:

“Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. A marriage of long duration is a marriage that lasts for more than 10 years.”

So, what does all that mean you ask? Does it mean a spouse could conceivably have to pay the other support for life? No. Not necessarily. What it does mean is that both parties in a marriage lasting more than 10 years are on the hook to each other for the rest of their lives as to the possibility of the court awarding spousal support to one spouse or the other unless an exception applies. When you think about it, that is a huge flying monkey on your back.

At any time after the divorce, either party can go to the other and request spousal support. Of course, the criteria and elements of an award of spousal support must be met for the spouse to prevail, but imagine a situation where both former spouses are making the same income. Ten years later one former spouse becomes disabled while the other’s income has steadily increased. Unless the disabled former spouse has remarried, or the supporting former spouse has died, they can knock on the door of the other and request spousal support.

So, the only ways this monkey flies away is if the former spouse requesting support has remarried, either spouse has died, or the parties agree to terminate spousal support at the time of their final judgment. In a marriage over 10 years, the court does not have authority on its own to terminate spousal support at judgment, however the parties may agree to do so.

Additional Long Term Spousal Support Considerations

In addition to the length of the marriage, there are many factors the court considers in ordering support and every case is decided on its own merits.

Some of these factors found in California Family Code Section 4320 include:

  • The marital standard of living – essentially the supported spouse is entitled to maintain their station in life they had during the marriage.
  • The marketable skills of the supported party.
  • Age and health of the parties.
  • Ability of the supporting party to pay support.
  • Any other factors the court determines just and equitable.

In the case of Affleck and Garner, that could amount to a significant amount of money, since Ben was pulling in about $105 million and Jen was earning just about $60 million at the time of their divorce. Continue reading →

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stay at home dadAre you a stay at home dad who is contemplating divorce? As society adapts its expectations as to the make-up and configuration of American families, the courts have had to take a look at age-old traditions when it comes to dealing with issues of child custody, spousal support, and other matters when couples decide to call it quits. Even though every state in the union has laws on the books prohibiting such decisions from being based on gender, sometimes fatherhood is still considered less-than in a divorce. If you are a stay-at-home dad who is contemplating divorce, having your rights protected by an experienced local attorney could mean the difference between misery and satisfaction in the years ahead.

Stay at Home Dad – Custody and Visitation

In California, decisions regarding custody and visitation are required to be based on the best interests of the child. Generally factors such as the age of the children, parents’ roles in caregiving, and the health and safety of the child are weighed heavily. If Dad has been the primary caregiver, the courts must give this strong consideration when looking at physical custody assignments.

Child Support Payments – Stay at Home Dad

The amount of child support the custodial parent receives is the first thing the court will address, before ever looking at spousal support. It will be determined based on the other spouse’s net income, but the court will consider payments made to support other children, health care premiums, and mandatory payments for union dues and/or retirement programs.

Spousal Support

As a stay-at-home dad, chances are your earnings were significantly less than your spouse’s—if not altogether nonexistent. A number of factors are considered when making spousal support determinations, none of them designed to be punitive to either party. Some key factors the court will look at include:

  • The length of the marriage;
  • Your ability to maintain a similar lifestyle as the one experienced during the marriage;
  • Your ability to earn a living without it having a significant impact on your child-care responsibilities;
  • Any domestic violence issues;
  • The age and health of both you and your spouse.

Support payments may be temporary or permanent, depending on these and other factors. Continue reading →

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grounds for divorceWhat are the legal grounds for divorce in California? Not every marriage results in the happily ever after that couples so hoped of achieving. In fact, the current divorce rate in this  country sits at somewhere between 40 and 50%. What we know about divorce—the causes, and the challenges, may not surprise most married people.

Psychological Tasks

Psychologists say that marriages that fail typically have one or both partners who simply have not succeeded with certain essential psychological tasks:

  • Shifting one’s emotional identity from the family they grew up in to their new family;
  • Building an intimate couple identity, while keeping autonomous boundaries alive to protect individual identity, as well;
  • Protecting the sexual relationship from family or workplace intrusions;
  • Sharing in parenting roles, while protecting the private adult relationship;
  • Teaming up together to confront challenges;
  • Laughing together to keep things in perspective;
  • Being available to comfort one another; nurturing one’s partner through good times and bad;
  • Keeping romance alive, despite the harsh realities of life.

Grounds for Divorce in California

Failing to build a psychologically tight knit union can ultimately be disastrous.  So what are the legal grounds for divorce in California?

One less commonly used ground for divorce is incurable insanity. More often, however, because California is a no-fault divorce state, one partner simply claims that there are irreconcilable differences that caused the breakdown of the marriage. That can cover pretty much any reason you can come up with. Most divorce attorneys have heard some pretty interesting stories…

Grounds for Divorce – Believe it or Not…

Clearly, a strong psychological foundation creates the basis for a hardy and healthy relationship. When couples fail to build a life together, marriages tend to eventually crack and fall apart.  Consider these unusual stories:

  • The grounds for divorce for one California woman was that when, after 22 years of marriage she discovered that her husband had voted for the current president of the United States. She felt the vote was a betrayal, which opened areas of dissention they had never before faced.
  • Following 25 years of marriage, another woman in California attempted to make a clean break from what her husband had believed to be a happy relationship. It turns out that, unbeknownst to him, the woman had won over $1 million in the California lotto.  Thinking she’d struck it rich, she hoped to skip out on the marriage and live happily ever after with the cash. Not so fast, said the Los Angeles judge over the case. After discovering that she had failed to disclose all of her assets, the judge gave all of her winnings the man she had hoped to deceive. Her ex-husband wound up without his sneaky wife, but with her secret cache of lottery winnings.

Continue reading →

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child custody evaluationsThe court will often resort to relying on child custody evaluations when there are volatile child custody issues in a divorce proceeding, or if for some reason parents cannot come to an agreement regarding child custody. Child custody evaluations, are conducted by qualified mental health professionals, to make determinations related to the legal and the physical custody of children. Psychologists, whose goal it is to address questions related to the best interest of the child, often conduct these evaluations.

Understanding California Child Custody Evaluations

There are two key components to child custody in California:

  • Physical custody relates to the living arrangements of the child.  Either parent may be awarded primary custody, or shared (joint) custody may be given to both parents.
  • Legal custody refers to decision-making powers.  It, too, may be solely or jointly awarded. The parent(s) who have legal custody have the ability to make conclusive decisions related to religious activity, education, medical issues, travel, and other important matters.

Preparing for a Child Custody Evaluation

It is no doubt stressful to even consider undergoing such a high-stakes evaluation. Even the most competent individual with the most outstanding parenting skills tends to be a bit intimidated when under the microscope. Some suggestions to get through it with as little stress as possible include:

  • Choose cooperation over obstinacy. You may resent the entire process, but you will be much better off if you accommodate evaluators, who might otherwise interpret your resistance in a negative way.
  • Treat the evaluation as a job interview. Put your best foot forward by displaying confidence, honesty, positivity, and punctuality. Obviously, express the love and concern you have for your child.
  • Have documentation related to your child ready for the interview.
  • Show the evaluator in word and deed that you have the best interests of your child in the forefront.  

How is the Child Custody Evaluation Conducted?

A number of strategies may be employed over a period of time to learn about the child including:

  • Running observations of the child in various settings;
  • Scheduling interviews with parents;
  • Conducting clinical interviews with the child;
  • Administering psychological tests;
  • Weighing other available documentation, like school records, medical records, and childcare records.

Additionally, extended family, friends, teachers, and other individuals who are familiar with and knowledgeable about the child may be contacted for relevant information. When all data is gathered, it will be evaluated by the psychologist and recommendations will be made to the court based on the best interests of the child. Continue reading →

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questioning my marriageQuestioning my marriage and asking what is the difference between a good marriage and a bad one? While the routines and expectations for every couple is different, one thing is for sure: Even couples in healthy relationships don’t necessarily begin and end every day floating through their relationships unburdened with the weight of questions that haunt those in unhealthy, unhappy marriages:

  • Should I stay or should I go?
  • Is this what marriage is all about?
  • Is this as good as it gets?
  • Are either of us happy?
  • Do I like my spouse?
  • Is this “normal?”

If you are lucky enough to go through every day without asking yourself these questions, or if from time to time some thought is given to such questions but dismissed, then you have already unconsciously made the determination that your marriage is worth it, and you are all in. If, on the other hand, you question whether or not you are in the right place, its time to get honest with yourself.

A Marriage Worth Fighting for

In the event that you are seriously unhappy, it is time to own up to the situation and make some tough choices. Is the life you have created worth fighting for? Is there still a flame there? Do you admire and respect the person to whom you are married? If so, it is possible that you are just in a slump and need to find ways to revitalize your relationship. Experts provide some advice on how to do this:

  • Forgive past mistakes and move forward;
  • Play 20 questions;
  • Plan a getaway;
  • Learn something new together;
  • Schedule a meal with just the two of you on a weekly basis;
  • Be lazy together. Just hang out with movies and junk food to decompress;
  • Show appreciation in new ways:  a note on his windshield, a card mailed to her office, anything novel to bring a smile to your partner.

Questioning My Marriage and Recognizing Things Are Not Going to Work Out

What if you really do not like your spouse? Does the idea of a getaway makes you nauseous, and would you would be far happier working all weekend than spending a day on the couch watching movies together? If you just can not imagine reigniting the flame, or if it was never there to begin with, acknowledging the situation for what it is can feel like a breath of fresh air.  Now, finally, you will begin to see your options.

No One Will Believe it!

You think this will come as a big shock to others. Really? Do you honestly think your kids, your friends, and your family has been fooled all this time? Think about it. Unhappiness is easy to spot:

  • A polite (or not-so-polite) tension hangs over every activity;
  • Snappy tones, eye-rolling, or other telltale signs are clear;
  • That playfulness of the early days has become obligatory civility;
  • There is always an excuse for why you do not show up as a couple;

Continue reading →

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court ordered child supportNon-custodial parents are required by law to provide some level of financial support (court ordered child support payments) to their children in any divorce decree. That being said, why are custodial parents owed nearly $20 billion in California alone? If you have hit a wall when it comes to collecting child support payments from your child’s parent, an experienced local attorney might be helpful.

Court Ordered Child Support Payments – Why?

Parents are obliged to provide for their children, whether or not they are, or have ever been, married. If an individual contests the claim of fatherhood, a paternity test can clear matters up rather quickly. At that point, some amount of child support is legally required for biological children. This court ordered child support is intended to assist in providing a home, food, clothing, and other basic needs. Even if earnings are minimal, the responsibility to contribute to that child’s well-being is indisputable, and court ordered child support payments will generally be enforced until that child is no longer a minor.  Children with special needs may need support beyond that time.

What to do if Court Ordered Child Support Payments are Not Made

In many circumstances, parents work out among themselves how court ordered child support payments will be made. In other situations, parents are forced to ask for wages to be garnished in order to collect court-ordered child support. These earnings assignments direct an employer to withhold support payments from regular paychecks. Within 10 days of receiving the garnishment order, employers must begin holding back funds. Theses monies will be sent to the California State Disbursement Unit (SDU), and will ultimately be sent to the custodial parent.

If the Non-paying Spouse is Not Regularly Employed

A number of things can be done to motivate parents who are not making court-ordered child support payments, including:

  • It can be reported to credit reporting agencies and impact the individual’s credit rating;
  • Passport applications can be denied to persons owing $2,500 or more in back child support;
  • Property liens may be filed against land or houses owned by the individual;
  • Drivers’ licenses and state-issued professional licenses, such as those for cosmetology, teaching, contracting, medicine and others,  may be withheld or revoked;
  • Vehicles, boats, cash, and property can be taken by the Franchise Tax Board if late payments exceed $100 and are more than two months past due;
  • Tax refunds can be intercepted.
  • Unemployment and disability benefits can be captured;

Continue reading →

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