Articles Posted in Divorce

A Canadian judge recently expressed his frustration with a couple who spent over $500,000 on a bitter child custody battle.

“How did this happen?” asked exasperated Ontario Superior Court Justice Alex Pazaratz. “How does this keep happening? What will it take to convince angry parents that nasty and aggressive litigation never turns out well?”

After a 36-day trial, Judge Pazaratz awarded sole custody of the eight-year-old girl to her father, in part it appears, because he was the more reasonable of the two.

Marriage of Burmester highlights the disastrous consequences that can result from poorly worded or structured child support agreements and orders.

moneyShortly before Husband and Wife divorced in 1999, they entered into a marital settlement agreement / court order resolving support, property division, and other issues related to the dissolution. Husband would pay Wife $803 per month in child support–$368 in base support and a $435 child care allowance–for their two kids. That was the first mistake – including the daycare as part of the monthly child support amount. To whatever extent the parties share or pay for daycare it should be separate from the child support payment. The child support obligation would be retroactive to September 2008, the month in which Husband and Wife initially separated. Husband paid more than $48,000 in child support over the next 14 or so years.

Husband lost his job in 2013 after suffering an unknown physical injury. He wasn’t able to work at this time, and he underwent surgery and rehabilitation. And the second mistake was not going back to court to modify support and stop the daycare order when not needed. Wife also lost her job at around the same time. She eventually went back to court, seeking child support arrears from Husband. Although the parties agreed that both children became emancipated and were no longer entitled to support by 2014, the trial judge said Husband owed Wife more than $70,000 in unpaid earlier support. After adding interest in the amount of some $27,000, the trial court hit Husband with a $97,000 bill for the unpaid support.

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Once upon a time, back in the 50’s/60’s when divorce was considered somewhat shameful and there were few of the wonderful, wise and supportive divorce professionals that, with some effort, can be found these days, Bill and Helen divorced.

It was a long, drawn out, torturous divorce that ended badly for everyone involved. (except for the floozy) Bill began sleeping with the town floozy and ultimately, fell in love with her. But he did not have the courage to tell Helen that he had fallen in love with someone else, and instead stayed away for long periods of time, was dishonest about what he was doing, and mean and judgmental with Helen, cruelly criticizing her for not being the woman he wanted, rather than being honest about his choices. Bill attempted to beat up one of his children for calling the floozy a slut. And the floozy was even more cruel and heartless than Bill. Helen was naïve and insecure and worried about what others might think, so did not open up with those who could have helped her. Nor was she able to simply confront Bill and suggest that the marital contract be terminated with as much dignity and respect as could be mustered. Or alternatively, simply ignore him, get some therapy and continue with a separate life while married. Instead, there were ugly fights, many tears and much sobbing, sleepless nights, and an emotional breakdown. Neither parent was present for the children in a meaningful way because, as is so often the case with divorces, the parents were too caught up in their own self-interest (Bill) and pain (Helen).

They lived separately for several years, Bill doing whatever Bill wanted and Helen working at a stressful, low wage job and trying to provide a home for the children. Seeing the pain Bill was causing, the children aligned with Helen and ceased their relationship with him, not even attending his funeral some forty odd years later.

Divorce can result in several tax issues, including which parent will claim the child-related tax breaks. Sometimes, but not always, it is the parent that claims the child as a dependent.

Dependency Exemption

For tax purposes, the parent who has custody for the greater part of the year, ie more than 50%, is the parent who can claim that child and is called the custodial parent. The other parent is considered the noncustodial parent.

California courts usually won’t change a spousal support award unless the person who wants to alter the award shows that there’s been a sufficiently significant change in circumstances to warrant the modification. On the other hand, state spousal support law carries with it a strong preference that a person receiving support make reasonable efforts to become self-sufficient. As the state’s Sixth District Court of appeals recently explained, a person looking to reduce or terminate support on the grounds that the recipient hasn’t made such efforts bears the burden of proving that the recipient isn’t living up to his or her earning capacity.

stock-photo-795349-now-hiring-must-have-a-clueHusband and Wife separated in 2001, following roughly 19 years of marriage. They divorced and entered into a marital settlement agreement a year later, through which the couple decided how they would divide their various property and assets. They also agreed that Husband would pay Wife nearly $2,700 per month in spousal support. Those payments were set to continue until either spouse died, Wife remarried, the couple agreed otherwise, or a court ruled that the payments should be modified or terminated. The agreement further stated that each spouse should strive to become self-supporting and that a court could consider that responsibility in altering the payment arrangement at any time.

Husband went back to court in 2013, asking a judge to either reduce or terminate the spousal support payments. He alleged that Wife had turned down a higher paying management position at Macy’s to stay in her sales associate role with the company. Husband also noted that the couple had been married for less than 20 years, and he had already paid support for a decade. He also argued that the spouses had lived above their means during the marriage, and he said the court shouldn’t rely on their standard of living at that time to set the support award.

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Retirement benefits are often among the most significant assets in play when a couple decides to divorce. The question of how to divide those benefits can be a tricky one that implicates both state and federal laws. As California’s Second District Court of Appeals recently explained, state law in California generally dictates that retirement benefits are community property to be split evenly between spouses upon divorce. Federal law, however, mandates that Social Security retirement benefits remain the separate property of the spouse who contributes to the system during the course of the marriage.

retired-and-relaxing-1565780Husband and Wife separated in February 2010, following roughly 16 years of marriage. Husband, who worked as an attorney, contributed to Social Security through deductions from his paychecks during the course of the marriage. Wife, who worked for a state government entity as an employee of local district attorney’s office, participated in a defined-benefit retirement plan (“LACERA”), in which her employer contributed the full amount. The total retirement benefits available to Wife under her LACERA plan were based on the number of years she worked, her age, and her compensation. The plan also barred covered employees from contributing to or receiving Social Security for the time they served in the district attorney’s office, according to the Court.

Husband and Wife eventually entered into a marital settlement agreement, in which they resolved a number of issues related to the divorce. Among other things, the couple agreed that Husband’s Social Security benefits – valued at $228,000 – were separate property and that Wife’s LACERA benefits – valued at about $215,000 – were community property. Wife later asked a trial court to divide the couple’s property in a way that accounted for this disparity. She said the court should either require Husband to reimburse the community for the Social Security contributions and then divide them equally, or allocate her all of the LACERA benefits to equalize the retirement assets. The trial judge declined, finding that federal law prevented the court from considering Husband’s Social Security benefits in dividing the couple’s property.

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Few, if any, parents would wish to punish their children for something they had nothing to do with, and would bristle at such a suggestion. And yet, so many do just that.

This frequently happens in divorces where a parent has had an affair, has spent an inordinate amount of time at work and less at home, or has ceded most of the parenting responsibilities to the other.

These parents when separating or divorcing believe they are entitled to significantly more parenting time because the other parent has squandered his or her right to that time based on these reasons. Why should he or she have the right to now spend so much time with the children they ask? And the reason is because it’s better for children to have a good and healthy relationship with that parent than not.

California divorce courts generally consider any property owned by one spouse before a marriage that spouse’s separate property to be kept by the spouse in the event of a divorce. Community property, on the other hand, includes anything that one or both spouses acquire through their efforts during the marriage, and it is typically divided equally between the spouses upon divorce. A recent case from the state’s Fourth District Court of Appeals shows how spouses can change the nature of separate property by specifically granting the other spouse an interest in it.

Husband and Wife were married for roughly 32 years before separating in 2007. Two years earlier, they signed an agreement in which the couple stated that all of the property they owned now and anything they acquired going forward would be considered community property. The spouses were eventually able to resolve many of the issues related to the divorce, but a nine-day trial was also held to consider lingering matters related to property distribution.

Wife argued that the trial court erred in awarding Husband reimbursement for his separate property under Family Code section 2640 because of the agreement to transmute all separate property to community property.

California law operates under a set of guidelines in child support cases that is used to calculate a parent’s support obligations based primarily on each parent’s income and time with the child. The overall aim of the guidelines is to set the support at an amount that attempts to equalize the living standard in both homes. The guidelines calculation is generally presumed to be correct, but there are some circumstances in which a court may choose to order support at an amount lower than the calculated rate. As the Fifth District Court of Appeals recently explained, that includes situations in which the paying parent has an “extraordinarily high income,” and the guideline amount is more than the child needs.

boarder-1536813Mother and Father’s four-year marriage was annulled in 2004, after it was found that Mother was still married to her first husband. They had two daughters:  one born during the marriage, and the other born in 2008. Mother lived in Bakersfield with the children, as well as with a son that she had with her previous Husband and another daughter that Father had from a previous marriage. Father paid Mother more than $17,500 in child support per month for his three children. As a member of the Manuel Band of Mission Indians, Father received annual distributions from the tribe based on its profits from a casino. That money often totaled more than $2 million per year, according to the Court. He wasn’t employed and didn’t have any other sources of income.

Mother went to court in 2012, asking a judge to order Father to pay her at least the guideline child support amount of about $20,000 per month for the couple’s two daughters. The court declined, setting the amount instead at roughly $12,500. It said that the amount “would adequately ensure that the children’s needs will be provided for.” Mother had been receiving nearly this amount from Father for the two kids prior to the ruling, the court said, and failed to show that it wasn’t enough to meet the children’s needs.

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“Dogs are our link to paradise. They don’t know evil or jealousy or discontent. To sit with a dog on a hillside on a glorious afternoon is to be back in Eden, where doing nothing was not boring–it was peace.”
Milan Kundera

It is estimated that about 50% of American marriages end in divorce. It is also estimated that 62% of American households include at least one pet. So, it is reasonable to conclude that many divorces also involve pets.

Do you consider your dog to be a highly adored member of the family? If so, you may be surprised to learn that most family law courts consider your ball-catching canine to be classified as personal property.

Divorces in California almost always include the division of property (assets and debts) between spouses. And sometimes, quite often in fact, the property is a dog. Since most courts consider pets to be personal property just like your toaster or car, judges usually follow the same guidelines they use to determine who gets to keep personal property when couples are dividing things in a divorce. All of this applies equally to cats but for some reason, it is the care and control of dogs more so than cats, that are disputed issues. California’s First District Court of Appeals recently considered a dispute over the family dog.

dog-3-1403648Husband and Wife entered into a stipulated agreement resolving most of the issues related to their divorce. However, they were unable to agree on what to do with Sadie, the family dog. The stalemate led to a two-day trial, after which a judge concluded that the pet was community property. The California Family Code requires community property to be split evenly between spouses. Courts often award the property to one spouse and require that person to compensate the other spouse for his or her interest in the property. Here, the trial judge awarded the dog to Husband, noting that Wife had maintained sole use and possession of the animal since Husband filed for divorce two years earlier.

Wife appealed the decision, arguing that her daughter from another marriage was the dog’s true owner. She said her daughter adopted Sadie and registered the animal with local authorities under her own name. Unfortunately, however, Wife didn’t point to any evidence in the record from the trial court hearing showing that this was actually the case. Moreover, the First District said she didn’t even provide a transcript of the proceedings. A person appealing a divorce decision is not required to provide the transcript of the proceedings, but courts in California typically don’t go and get those records on their own and are likely to presume that the decision was supported by adequate evidence if there is no transcript to review.

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