Articles Posted in Family Law

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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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supervised visitation, santa rosa supervised visitation attorney, supervised visitation attorneySanta Rosa supervised visitation attorney blog. According to California law, parents should have frequent and continuous contact with their minor children during the separation process and after their divorce is finalized. However, the law also provides that the court should make decisions regarding visitation and custody, based on what is in the best interest of the child. One factor that is considered when determining the best interest of the child is their safety and well-being. Accordingly, the court must order visitation and/ or custody arrangements that protect the child’s safety and well-being.

In some circumstances, the court may order supervised visitation to protect the child’s safety and well-being while preserving the parent-child bond. One example of a situation in which this may occur is when allegations of domestic violence exist against one or both of the child’s parents. In such a situation, the parent who was a victim of domestic violence may request a restraining order against their spouse or former spouse. If granted the restraining order limits contact between the individual who is charged with domestic violence and their spouse or former spouse, and in some situations, their child as well.

Supervised visitation may be overseen by a professional or nonprofessional.

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Going through a divorce and settling all related issues can be trying. Most people want to put the marriage and legal issues behind them once the divorce is finalized. Unfortunately, this is often not the case. Frequently, a former spouse will return to court in the years following a divorce in order to revisit legal matters or raise new complaints. Each time you return to court can be costly, and acrimonious tendencies may arise again. It is always important to have an experienced family law attorney on your side, one who can help you get the outcome you deserve and make the process of returning to court easier amark sanfordnd less costly.

The Ongoing Case of U.S. Representative Mark Sanford

Mark Sanford is a member of the United States House of Representatives and a former governor of South Carolina. In 2009, Sanford disappeared unannounced for several days; his assistant claimed Sanford was hiking the Appalachian Trail. When he returned, Sanford admitted to having an affair with a woman in Argentina. Sanford’s wife, Jenny, subsequently filed for divorce. The divorce was granted and finalized in 2010.

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Marriage and MoneyMarriage and Money

Marriage and Money. Marriage can be challenging, especially when it comes to family finances. Many studies suggest that financial issues are the most common sources of contention in a marriage and a common cause of divorce. Following are some of the mistakes that married couples make when handling questions about money.

  • Not dealing with a spouse’s debt – It is common for you and your spouse to enter a marriage with a certain amount of debt, or to acquire debt during the course of a marriage. For example, you or your spouse may acquire debt for education, to start a business, or to pay for medical expenses. A common mistake that people in a marriage make is to treat a spouse’s debt as only a problem for the spouse. Either spouse’s debt affects both people in a marriage. Even debt acquired by a spouse before the wedding day can negatively impact your credit rating. You and your spouse should make a plan to handle all debts as a couple.
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Alimony, taxes and tax deductions. Tax day recently came and went and with it, many Americans were thinking about what deductions they could list on their returns. The tax code seems to get more complicated every year, making it difficult for taxpayers to avoid paying more than they are legally obligated. Divorcees who pay or receive alimony or child support are particularly vulnerable to our complex tax laws and the risk of overpayment. In order to maximize their deductions, divorced taxpayers need to carefully analyze the rules governing spousal support payments. The tax implications of alimony are quite different, depending on whether you are on the paying or receiving end of the money.

TaxesTax Implications for Paying Alimony

Alimony payments are generally tax-deductible for the person paying the support. If you pay alimony to your ex-spouse, make sure that you list it as a deduction on your tax return. Note that certain other types of payments to an ex-spouse are not tax-deductible. These include child support payments, distributions of personal or real property, and mortgage payments on a house co-owned by the two ex-spouses (you can deduct half, but not all, of those mortgage payments). Make sure you keep separate records of your alimony and child support payments, so that you do not confuse them on your tax return.

Tax Implications for Receiving Spousal Support

If you receive spousal support payments, you should be aware that it is considered taxable income. You will want to factor in the alimony payments when you are trying to figure out which tax bracket you fall into, and plan accordingly. Failing to report alimony payments you have received on your tax return will likely result in an IRS audit, particularly since your ex-spouse is likely to deduct the payments on their own tax return. Mortgage payments made to third parties on your behalf are also considered taxable income. Child support payments, however, are not taxable, and neither are non-cash property settlements.

Divorce Decree Should Clarify Types of Payments

A divorce decree or marital settlement agreement is issued at the end of a divorce proceeding and spells out each party’s obligations. The decree or agreement will often clarify which payments qualify as spousal support (and are therefore tax-deductible) and which do not. In addition to child support, other payments that are not tax-deductible include money used to maintain the payer’s property or the simple use of the payer’s property. You should read the decree or agreement carefully in order to make a preliminary determination as to which payments are taxable or which may be tax-deductible, and make sure to comply with its terms.

What to Do if You Are Paying or Receiving Alimony

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My ex-spouse will not pay child support. Child support is not supposed to be a voluntary commitment for divorced parents. Courts often order one parent to make payments to the ex-spouse who is primarily raising their children, for the express purpose of supporting those children. However, sometimes the parent falls behind and does not meet their child support obligations. There are many reasons why this would happen, such as loss of employment, illness or injury, or simple laziness. But no matter the reason, the parent who should be on the receiving end of the child support will want to know how to get the money they are owed.

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How to Get an Ex-Spouse to Pay Child Support

There are a variety of ways a parent can go about compelling their ex-spouse to pay their court-ordered child support. Among the possible courses of action are the following:

1.    Enter into a private agreement with your ex-spouse: If your ex-spouse genuinely cannot make the court-mandated child support payments, whether due to lack of income, illness, or injury, you can always work out a private agreement that reduces or suspends the payments while your ex tries to get back on their feet. Family courts will generally allow these side agreements and will refrain from enforcing their own orders while the private contract is in effect. However, you should be clear with both your ex and the court that, if the ex does not resume making payments when they are supposed to, you will go back to court to force them to do so. You will probably want to hire a family law attorney to draft an agreement of this sort.

2.    Go to mediation: If you want to address the child support issue in a formal setting without actually going to court, mediation might be a good route. Mediation is less adversarial and less expensive than family court, which is why more and more couples are using this option. Agreements reached in mediation can be more flexible and creative than court-ordered remedies. There are probably a number of licensed mediators in your area, and you can usually get a list from your local court.

3.    Take your ex-spouse to court: This is the most drastic, but probably also the most effective, of your options. You can hire a lawyer and return to family court for a contempt proceeding against your ex-spouse. If you can show that your ex is not meeting their court-ordered obligations, the court will try to find a way to compel them to pay the child support. One way the court may do this is through wage garnishment, where a percentage of the person’s wages are automatically diverted to the court and then to you. Many divorced parents hesitate to take their ex-spouses to court any more often than they have to, but if the well-being of your children is at stake, it may be the only viable alternative.

What to Do if Your Ex-Spouse Will Not Pay Child Support

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Bode Miller and his ex-girlfriend are engaged in a unique custody dispute that could have major consequences for this area of law. Many Americans watched skier Bode Miller compete in the Sochi Winter Olympics over the past two weeks, as he capped off his legendary career with a bronze medal in the Super G event. He also generated a great deal of sympathy from viewers around the world when he broke down in tears during his post-race interview. But a custody dispute story involving Miller has made headlines in the world of family law, even as it was swept aside during the television coverage of the Olympics.

Skier The conflict centers on Miller’s ex-girlfriend’s decision to move to another state while she was pregnant with Miller’s child, but after they had broken up. The issue is whether she had a right to do this and what implications her decision has for deciding custody of the child.

Custody Dispute initiated in Moving From California to New York

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Same sex couple married in CA seeks same sex divorce in Mississippi. Simple? Not exactly.

Lauren Beth Czekala-Chatham asked a Mississippi court to recognize her same sex marriage, which took place in California, so that she could file for divorce within the State. Although the couple was married in California, they resided in Mississippi for the duration of their marriage. Czekala-Chatham could file for divorce in California because the State exempts same sex couples from residency requirements that ordinarily require at least one divorcing spouse to be a California resident for six months prior to filing. In part, this is so same sex couples who marry in California but reside in states where their marriage is not legally recognized do not have to face the burden of establishing residency before they can file for divorce. However, California courts will not always be able to issue significant rulings related to property ownership, debt, alimony, or children.
Because California cannot issue certain rulings regarding property ownership, debt, alimony, and children, it is not a viable option for some divorcing same sex couples.
In a telephone interview, Czekala-Chatham explained that failing to get divorced could have serious repercussions. Czekala-Chatham has children from a prior relationship and is concerned that her spouse could contest her will and take her children’s inheritance if they failed to get a divorce. According to court filings, Czekala-Chatham is seeking the couple’s marital home in Mississippi as well as, alimony in the divorce. Czekala-Catham says she will go all the way to the State’s Supreme Court in order to have her same sex marriage recognized because she doesn’t see another way out of the situation. If the State were to recognize her marriage, it would not permit same sex marriages in Mississippi, which remain banned under Mississippi law.

Same Sex Marriage.jpg
Since the U.S. Supreme Court stuck down parts of the Defense of Marriage Act, several states have faced similar requests.
Several other states which have bans on gay marriage have been faced with similar requests since the U.S. Supreme Court struck downs segments of the federal Defense of Marriage Act earlier this summer. For instance, the Texas Supreme Court is considering whether it has jurisdiction over same sex divorce cases, even though it does not allow same sex marriage. Oral arguments are scheduled for next month. At least two same sex couples have filed for divorce in the State.
However, Mississippi College constitutional law professor, Matt Steffey says the Mississippi case is a long shot because the right does not exist within Mississippi law. He believes the issue of same sex divorce will eventually reach the U.S. Supreme Court.
Continue reading →

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In a (perhaps temporary) blow to gay couples and Utah same-sex marriage advocates, the United States Supreme Court has granted a stay on a federal district court judge’s decision overturning Utah’s gay marriage ban. According to a story in The Salt Lake Tribune, the Supreme Court’s ruling, which came down on Monday, will effectively halt same-sex marriages in Utah for the time being.

The district court judge’s decision legalizing gay marriage in Utah came down about three weeks ago, and surprised observers both in Utah and around the country. Overnight, one of nation’s most conservative states was granting marriage licenses to same-sex couples. However, the state plans to appeal the ruling to the 10th Circuit Court of Appeals and, if that fails, all the way to the Supreme Court. The stay means that no more same-sex marriage licenses will be issued in Utah at least until after the 10th Circuit rules on the appeal.

Judge and Gavel

Stay Puts Married Same-sex Couples in Limbo

Many same-sex couples were married during the three-week period between the district court ruling and the Supreme Court stay. The legal status of those couples, in terms of their rights and their ability to receive government benefits, is unclear for now, and no more gay couples can get married until the higher courts sort out the appeals. The Supreme Court’s decision came after both the district court and the 10th Circuit declined to grant stays. An attorney for the Utah same-sex couples who originally sued in district court, objected to the stay and was quoted as saying, “every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Similarities and Differences with California Decisions

Utah is the second state in the nation, after California, to have a federal court strike down its law banning same-sex marriage. In California, a district court judge found Proposition 8, the 2008 ballot initiative that banned same-sex marriage, to be unconstitutional. In that case, the district court imposed an immediate stay on the ruling until the issue could be resolved by the higher courts on appeal.

That stay prevented the situation we now see in Utah, where couples may eventually have their marriage licenses revoked, even though they followed the law on the books at the time they were married. It ultimately took about three years for the California case to go from the district court to the U.S. Supreme Court. The district court’s decision overturning Proposition 8 was affirmed by the Supreme Court last year in Hollingsworth v. Perry. It is very possible that the Utah case will take just as long to resolve.

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Utah’s anti-polygamy law was ruled unconstitutional this month when a federal district court judge in Utah struck down the state’s prohibition of “cohabitation,” perhaps opening the door for the eventual legalization of polygamous marriage. The case continues the recent trend, in courts and in the nation as a whole, toward changing the way we think about marriage and the regulation of personal relationships by the government.

Polygamy Hands

The challenge to the Utah statute was brought by a Utah man (and reality television star) who lives with his four wives and 17 children. The court found that, under the First Amendment’s guarantee of the free exercise of religion, the statute’s language banning “cohabitation” is unconstitutional. The state can still prohibit actual polygamy by not allowing anyone to have more than one valid marriage license. However, the decision may pave the way for the legalization of polygamy sooner rather than later.

Another Significant Change to Domestic Relations Law 

The decision is the latest in a line of cases, from Lawrence v. Texas in 2003 through US v. Windsor earlier this year, in which the federal courts have expanded the right to privacy and limited the government’s ability to regulate private sexual behavior. The Utah court specifically cited Lawrence, which struck down anti-sodomy laws in Texas. In that case, the majority opinion stated that the Constitution protects people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

The dissent in Lawrence famously argued that the decision would inevitably lead to the legalization of same-sex marriage, polygamy, and other non-traditional familial arrangements and sexual practices. If marriage is nothing more than a matter of choice by consenting parties, reasoned the dissent, then there is no basis for limiting it to opposite-sex couples or to just two people.

In Windsor, the Supreme Court found the Defense of Marriage Act unconstitutional, essentially requiring the federal government and state governments to recognize same-sex marriages from other states. Once again, critics predicted a “slippery slope” in which anti-polygamy laws would no longer stand up to constitutional scrutiny. If decisions about who can get married belong exclusively to the individuals involved, rather than to the community or government, then any regulation of those consensual decisions becomes intrusive.

The plaintiffs’ attorney in the Utah case, however, disagreed with the dissenting opinions in Lawrence and Windsor. He argued that those cases and the Utah decision ultimately come down to privacy, and to each person’s “right to be left alone as consenting adults.” People should be able to do whatever they want in their own homes, as long as they do not harm others. The government, the attorney argued, should not interfere with what its citizens do behind closed doors.

What to Do if You Want to Enter into a Non-traditional Marriage

Since the Utah decision relied on federal law, it would be equally applicable in California and other states. Continue reading →

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