Articles Posted in Divorce

One of the many issues that often come up in California divorce cases is what to do with the family home. The state’s Fourth District Court of Appeal recently explained that a spouse who uses his or her separate money to help purchase the property is entitled to be compensated before the value of the home is divided between the former couple. To get that compensation, however, the spouse has to clearly show where the separate money originated.

houseHusband and Wife were married for about 18 months before they divorced in the summer of 2004. The former spouses are both Serbian nationals, and they met at a state dinner in which Wife interviewed Husband for a story for the news service where she worked as a journalist. Husband was a successful engineer who held the patents for a number of services and products. The two began living together in Southern California in 2002 and married the following year.

The couple purchased a $2 million home together in Laguna Niguel just two weeks before they separated. A trial court found that the home was community property to be split evenly between the divorcing spouses. The court further concluded, however, that Husband was entitled to a credit for the $545,000 of his own separate money that he used for a down payment on the property. After allocating that amount to Husband, the court said the property was worth less than the outstanding balance on the home’s mortgage. As a result, the court awarded the property to Husband. It also declined Wife’s request to be compensated for Husband’s exclusive use of the home from the time the couple separated until they were actually divorced. It noted that Husband used his own money to cover all of the expenses related to the house.

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First there’s the bachelor/bachelorette party, the invitations, engagement party and then rehearsal dinner. Some folks, generally those with more money than brains, even hire a photographer for the engagement. Then the big day itself, along with the requisite photo booth, seemingly a necessity these days. And of course, even a website designed to share with the world the first time they laid eyes on each other.

Most sane folks would certainly agree with sociologist and sexologist Dr. Pepper Schwartz who says, “The whole thing has gotten way out of hand.” The whole thing being the never-ending list of high priced accouterments that now accompany a wedding.

Couples spend an average of $28,000 – $30,000 on the Big Day … but apparently, the more you spend, the shorter the marriage.

Divorcing spouses who take their cases to court generally have the right to appeal a decision that they don’t like, although appellate courts usually give trial judges much discretion in weighing the facts and applying the law in each case. Appellate also operate under strict deadlines that can deprive you of your chance to obtain a new decision changed if you don’t seek a second opinion soon enough. California’s Fourth District Court of Appeals recently considered a case involving those time limits.

clockHusband and Wife separated in January 2009, just 10 months into their marriage. The spouses submitted, and the trial court entered, a stipulated judgment setting forth how they would divide their property and handle other issues. Husband was awarded all of the spouses’ community property and debt and was to pay Wife $50,000 for her share of the assets. Once that payment was made, Husband was no longer required to pay Wife spousal support. The spouses acknowledged that they were resolving the issues “without a full and complete assessment of the value of the property.”

Wife went back to court in 2012 and asked a judge to set aside the judgment stating that she was under duress at the time that she agreed to the terms of the judgment. Wife also asserted that Husband failed to make certain legally required financial disclosures before the agreement was signed and the judgment was entered. The trial court held a hearing on the request and issued a decision denying the motion to set aside the previous judgment later the same day.

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Separating and divorcing parents must always address issues regarding the custody and visitation of their minor children. And sometimes this also includes the grandparents. California law also gives grandparents the right to spend time with their grandkids under certain circumstances. As the state’s Third District Court of Appeals recently explained, courts considering a request for grandparent visitation rights focus on the grandchild’s best interests, among other factors.

grandpa-1256162Father and Mother were married when Mother gave birth to Daughter in 2004. Father’s parents moved from Sacramento to a residence three blocks from the family’s home in Roseville a year later, and Grandfather became the child’s primary caregiver. When Father and Mother separated and then divorced four years later, the grandparents watched Daughter as much as 25 days per month.

Husband’s relationship with his parents started to sour, however, after Daughter and he moved in with the grandparents. They said Father’s mood changed when he started taking certain medication. Father and Daughter eventually moved out of the house, supposedly after the grandparents asked him to leave. Father then told his parents that they would never see the child again. Their time with Daughter decreased over the following months, and the grandparents eventually asked a court to award them visitation time.

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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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