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California’s Paternity Testing Laws

In the state of California, the terms “paternity” and “parentage” are often used interchangeably. In parentage court cases or paternity cases, orders are passed by the court to determine the identity of the child’s father.

 

In certain cases, the law might assume the father’s identity. For instance, when a child takes birth in the duration of a marriage, it is assumed that the husband of the mother is the father. Similarly, if a man continues to stay with the mother and child in a family-style setting, and showcases commitment towards the child’s development, he is assumed to be the father (though he may not be the biological parent).

 

In the case of unmarried parents, it becomes crucial to legally establish the parentage of a child. This involves signing a ‘Declaration of Paternity’ or getting an official Court Order which states the identity of the child’s legal parents.

 

It is important to establish parentage prior to custody, child support, or visitation orders being given by the Court. Couples can request the ruling judge to include visitation and custody or child support in the case that establishes parentage. In cases where the father refuses to admit parentage, the court might order the assumed mother, father and child/children to undergo genetic testing.

 

Genetic Testing

Genetic testing helps in determining biological parentage through a systematic process. It compares the DNA of the alleged father, the mother, and the child involved in the case. Blood testing is not usually used for DNA testing anymore. These days, DNA testing is typically done by a method called ‘Buccal Swab’, an absolutely painless technique. In case the father is unwilling to cooperate, his non-cooperation might be considered as paternity evidence by the judge.

 

If requested, an alleged father cannot be refused genetic testing under most circumstances. How does a man request for genetic testing? He needs to immediately file for an answer denying paternity when served with something known as ‘Summons and Complaint’. The expense for the genetic testing is typically undertaken by a local agency handling child support in the case.

 

The Child Support Services Department, or CSSD, schedules the genetic testing. This usually happens via an appointment either at the official CCW (Central Civil West) courthouse or at the civil contact office center (where the case is being handled).

 

The CSSD will schedule an appointment depending on availability. The appointment letters are sent to the PRS (Person Receiving Support), the suspected father, as well as the child.

 

Other Ways of Establishing Paternity

Voluntary establishment of paternity is the simplest way to go about the procedure. This happens when the mother and father of the child give their consent and sign the “Voluntary Declaration of Paternity” (VDP). In case an unmarried female ends up delivering a baby in a clinic or hospital, it is mandatory for the present medical care officials to provide her with information regarding the VDP form. The same information must also be provided to the suspected father, if present. When a father and mother sign the VDP form, they acknowledge that their parentage vis-à-vis the child. The father is then the legal father of the born child.

 

It is equally important for same-sex couples to establish parentage if the partners were unmarried during the birth of the child or when the woman got pregnant. For instance, when two women in a relationship (not married) decide to become the parents of a child and the partner who didn’t give birth wants a legal parent status, she would need to make a request to the court and get her parenting rights legally established.

 

 

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Maya Shulman, Esq.

Shulman Family Law Group

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Child Support Rules in Shared Custody

Many parents are surprised to know that child support could be ordered even under shared custody. Shared legal custody implies that parents are joint decision makers for the child, and this does not have any impact on the amount of child support decided by the court. Only in the case of joint physical custody, i.e. the child would live with either parent, does the issue of child support come up.

 

Although child custody and child support are not the same things, they usually go hand-in-hand in all divorce discussions. In reality, in the majority of joint custody cases, one or both parents are ordered by the law to pay for child support. If you’re discussing the possibility of joint custody with your partner, avoid eliminating issues related to child support.

 

Understanding Child Support

For those who are not sure about what child support means, it is simply a periodic payment offered by a co-parent(s) on a regular basis and helps take care of the financial needs of the child. The court could enforce child support in cases of divorce, marriage dissolution, annulment or separation. The amount of child support varies from case to case and is sometimes decided on the basis of the custody arrangement between the co-parents.

 

In most states in the U.S., including California, a key factor affecting child support decision is the time spent by each parent with the child. When both co-parents spend almost equal or equal time with the child, it is referred to as ‘shared physical custody’. However, this doesn’t automatically imply that parents will be exempted from paying child custody if they see the child equally. The specific shared physical custody arrangement would have an impact on the child support amount.

 

Calculation on the Basis of Income Share

The income share method is the most commonly used formula to determine child support. Under this formula, the amount of child support is calculated as a percentage and takes into consideration the income of either parent.

 

For instance, if the mother is earning $50,000 annually and the father is earning $100,000 annually, then their total income amounts to $150,000 per annum. The percentage of shared income to be paid by the mother is 33% and about 67% needs to be contributed by the father. If the state uses the income share method to determine child support, then the mother would need to pay 33% while the father would pay 67% of the total expenses.

 

When a state is following the income share method to calculate child support, the overnights spent by the child with either parent helps to determine the support amount. The greater the number of overnights spent by a parent, the lesser his/her support obligation. This is because the expenses for shelter, food, clothing and other utilities tend to increase with greater time spent at a parent’s home. Also, these expenses are paid directly by the parent during the child’s stay with him/her.

 

There are some other factors which also help in determining the child support amount. These include:

  • Tax considerations
  • Child care and education needs
  • The number of children staying in the house and their ages
  • The expenditure involved in the maintenance of each parent’s home
  • Special needs of the child (if any)

 

The state of California offers a variety of different joint custody options. The most commonly adopted model of shared custody allows both parents to have legal and shared physical custody of their child. This implies that either parent participates in the daily life of the child and takes important decisions related to education, religion and health.

 

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Maya Shulman, Esq.

Shulman Family Law Group

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A couple’s divorce settlement in California is not just limited to alimony and child support. They also need to consider federal tax implications and tax consequences, preferably when pursuing litigation or negotiating the settlement.

 

When a couple makes the decision to go their separate ways, several aspects of their life demand serious considerations. Such aspects may include selling the property (or not), child custody, pet care, and so on. These are all emotionally draining issues and can take up quite a lot of time. This is the reason why tax issues often end up being the last matter to be discussed in a divorce settlement. However, ignoring tax consequences in a divorce could be a serious error.

 

When couples are in an ongoing divorce proceeding, their marital status as noted on the tax year’s last day is a critical consideration. This information helps the IRS to determine the amount of tax due to each spouse. According to the IRS regulations, a married couple has the option to file in two different ways: jointly or separately. As far as the federal tax rules are concerned, “marriage” is only seen as a legal partnership between two people. If a couple’s divorce is not settled by year-end, they are considered to be “married persons”. In this case, the couple will enjoy certain tax advantages.

 

Property Division and Tax

The settlement of property is perhaps the most complicated tax issue in a pending divorce. It isn’t the actual division that creates problems; it is the tax implications that bring up several issues. Typically, each spouse receives whatever is left out by the other, and the remaining gross net worth of the couple is split as per the boilerplate ratios (60/40 or 50/50). Certain assets, such as loans, involve tax benefits or liabilities, and others do not.

 

These hassles can be avoided by hiring a divorce attorney and a tax professional that can help calculate the accurate market worth of the disputed possessions. These professionals also help after-tax values of all items along with tax bills.

 

Child Custody, Support and Tax

The spouse who provides child support is likely to claim reduced tax liability, but this is possible only if the spouse meets a set of requirements. The child can be claimed as a dependent on the tax return by a custodial parent (as named by the divorce order). They would qualify for exemption even if the child lived with them for a time longer than that spent with the ex in a year. A noncustodial parent may also claim tax exemption in case the other party signs a disclaimer stating that they would not claim it.

 

Alimony and Tax

The alimony amount is taxable for the spouse who provides it, as well as for the recipient. Therefore, it is mandatory for both parties to file tax returns separately in order to proceed with the alimony arrangements.

 

Information such as the Social Security Number is necessary for the ex-spouse to claim tax deductions. It is possible for the IRS to impose a penalty of $50.00 upon the party that received alimony, in case they haven’t shared their SSN with the former partner.

 

In cases of a rough divorce involving concerns about a spouse’s tax or financial problems, a lawyer might suggest that both parties file separately, which reduces the risk of one spouse financially harming the other. This method helps in ensuring that both parties take responsibility for the obligation and accuracy of their personal filing only, even in regard to higher federal taxes.


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Maya Shulman, Esq.

Shulman Family Law Group

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Retirement Plans in Divorce Cases

The retirement system in each state has designed a specific set of rules that are applicable to the pension division of state workers in divorce cases. Although an individual does not receive any benefits from the pension scheme till the retirement age, the plan can usually be split up before retirement in case there is a divorce involved.

 

As far as the state of California, courts may divide retirement plans such as pension, similar to how they divide other property owned by a couple. But retirement plans usually need an extra set of paperwork for legal division.

 

Division of Pension in California

According to California legislation, the property owned by an individual prior to marriage is usually considered to be ‘separate property’. This means that the property in question (owned before marriage) will not be divided in the divorce.

 

Similarly, pension contributions that are made prior to marriage (or post marriage) are regarded as the individual’s separate property. However, contributions made in the duration of the marriage become ‘community property’, and are liable to be divided by the Divorce Court. Hence, if a spouse worked for ten years at a pension-qualifying job prior to marriage, they will be entitled to keep their contributions and enjoy the benefits earned during the employment period.

 

If a spouse wishes to accrue all pension benefits, then the current value of the plan needs to be determined first. When talking about defined contribution schemes such as 401(k) or IRA, it is quite easy to assess the current value because it gets recorded in monthly, quarterly, and/or annual statements, and is known to the plan holder. As far as defined benefit plans are concerned (employer-sponsored pension), if the plan holder is not in the pay status, it is important to determine the existing value of the plan with the help of an expert called actuary. This is done using an inflation estimate and a few other factors.

 

In case the parties decide to consult the Courts, the actuaries employed by both parties might take opposing positions and come up with quite different financial figures. The judge then takes the final decision on the division.

 

Complexities in Pension Plan Divisions

It isn’t uncommon for pensions to get complicated in a divorce, especially when a spouse is attempting to put values on contributions made before marriage. Hence, it is advisable to employ an experienced pension expert so that you can get a clear idea about the division and potential value of the pension. Several couples may be in agreement on the subject of pension division, whether they hire an expert or not.

 

In some cases, the pension plans need to be “joined” in the divorce case. In the absence of the joinder, it is difficult for the court to issue any ruling with regards to dividing the benefits. However, not every type of plan needs to be joined. You can go through the California Form FL-318-INFO to see the plan categories that need to be treated as party to the divorce case.

 

You might also come across pensions which may only get divided via a Qualified Domestic Relations Order. This is the court legislation which explains the division details. In order to be legal, the orders need to meet a set of legal requirements, such as the approval of the benefit provider and the judge. QDROs end to be quite complicated and hence there isn’t any standard court form in California which fills this requirement. For instance, it is mandatory for a QDRO to list the address, birth date and Social Security number of each spouse.

 

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Maya Shulman, Esq.

Shulman Family Law Group

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The common issues surrounding nearly all divorce cases include alimony, property division and tax consequences. But the situation can get a bit more complicated when a couple owns very high-value assets.

 

When a couple has high-value assets, it usually means that they own a range of different assets and have various income sources. In the event of a divorce, either party would need assurance that there is complete disclosure about the other spouse’s debts and assets, particularly in community property states such as California.

 

Such divorces cases, i.e. those involving high stakes, require the consideration of several crucial factors. Some of them include the following:

 

Identifying, Categorizing, And Calculating Assets

One of the main difficulties in high-stake divorce cases is to pick out the key assets and put them in the proper categories. As per law, almost all assets that are acquired prior to marriage are separated from the other assets, but this isn’t the case with some specific assets owing to value appreciation. You will find that some couples who own high-stake assets might decide to formulate a prenuptial agreement for applying property rights and minimizing complexities in case there is a divorce.

 

In California, both married partners are usually given equal entitlement to marital property, income, and other assets, irrespective of which partner earned the asset. The California Family Code Section 2640 offers couple reimbursement rights with respect to independent property contributions towards the community property. It also offers reimbursement rights for any community property that is contributed to a spouse’s individual property. This code might sound slightly complicated, and this is why most attorneys prefer the ‘Moore/Marsden calculation’, which makes it easier to calculate the real estate interest of each party when a spouse purchased the property before marriage.

 

It is usually difficult to come up with a simple Moore/Marsden calculation when dealing with actual divorce proceedings, especially in high-stake divorce cases. This is because it is common for couples to make improvements to all their assets, including the sum. They might even modify the title which will ultimately change the entire equation.

 

Tax Consequences In High-Stake Divorces

Most people show little or no interest in tax-related subjects in a divorce case. However, it is inevitable for key tax issues to arise in the division of high-stake assets including property. For instance, a partner who receives some assets might be taxed for distribution. It is common for spouses in a high-stake divorce case to ignore tax consequences of various assets. But it is recommended that such couples spend time with an experienced lawyer as he/she could simplify the process for them.

 

Finding The Right Lawyer For A High-Stake Divorce

As mentioned earlier, high-stake divorces can be quite complex and may take a lot more time than standard divorce cases. This is primarily due to the comprehensive processes of assessment, categorization, and asset division that may take up an unlimited amount of time. Hence, it is crucial to formulate transient orders for custody matters, spousal maintenance and legal expenses. Such complications might even lead some couples to consider the alternative of undisputed divorce.

 

The lawyer and law firm hired for a high-stake divorce plays a critical role in the final outcome. High-stake clients typically need an attorney who is capable of managing the specifics. In fact, property division in high-stake divorce cases is often managed by a team rather than a single lawyer. The lawyer hired for such a case should have the expertise to gather a team which may also include a skilled property-valuation expert.

 

 

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Maya Shulman, Esq.

Shulman Family Law Group

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Difference between Conservatorship & Guardianship

Adults are usually adept at making all kinds of health and finance-related decisions. However, there may be a possibility that an adult loses his/her ability to make rational decisions due to various reasons-mental illness or physical ailment. The principles of guardianship and conservatorship come handy in such situations.

 

Conservatorship

In the state of California, conservatorship is described as a legislative principle that allows one individual to attain legal control over another individual. The person over whom control is exercised is usually a close family member. In most cases, a person requires conservatorship when he/she has aged and has lost the physical and mental ability to care for their personal affairs. The court usually appoints such roles only in the case of minor children or elderly people suffering from something as critical as dementia or Alzheimer’s or other mental disorders.

 

There are basically two kinds of conservatorships in California:

 

Conservator for a person: In this role, a conservator is required to handle the personal affairs of an individual. These include attending to their fundamental care needs in order to maintain healthy living standards and taking health-related decisions.

 

Conservator for an estate: As the conservator for an estate, the appointed person is required to handle the financial affairs of the now incapable individual. This includes the management of his/her debts, income and other important financial assets. The court makes it compulsory for the conservator to file all financial reports regularly while performing this role.

 

Guardianship

Most people assume that guardianship is applicable to children only. But there are some cases in which this principle might apply to disabled adults or senior people, who are incapable of caring for their personal well-being. When it comes to children, a guardian will typically care for a child till he/she turns 18. Alternatively, the guardianship might be terminated with the child returning to the parents. There are multiple cases in which grandparents, close or extended relatives assume the role of guardians if parents are deemed as unfit, or are unavailable or incapacitated for parenting by the court.

 

If there is no close person or relative available to take care of the child, the court may appoint someone known as a ‘professional guardian’ to play the important role. An agency might also be given the task of caring for the child. The guardian is usually given the authority to take all decisions related to education, overall care, safety, health and support.

 

Guardians are not allowed to take any decisions related to basic rights including marrying and voting. It is at the discretion of the court to order partial or full guardianship. The decision usually depends on each individual situation. In partial guardianship, the guardian can only take decisions related to specific needs.

 

In both guardianship and conservatorship, the court appoints a deputy decision-maker for the person who is now incapable of managing his/her personal affairs.

 

Effects of Guardianship and Conservatorship

It is clear that both these principles involve the transfer of some powers from the conservatee/minor to the conservator or guardian. Some of these powers include taking decisions in the area of selling, transferring or conveying property; delegating power, making gifts; incurring debts; performing the role of a fiduciary; waiving rights.

 

In a conservatorship scenario, it is possible for the court to alter the transferred powers if it is convinced that a particular conservatee has required capacity with respect to specific powers.

 

The key advantage of conservatorship/guardianship is that they are backed by court support and supervision for all decisions. By appointing the supervised conservator or guardian, the Court can ensure the best protection or guarantee of the conservatee/minor’s interests.

 

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Maya Shulman, Esq.

Shulman Family Law Group

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If you are someone associated with International law in the United States in a legal capacity and needs to secure documents, people, or just about anything brought to the country, letters rogatory are your best friends.

 

If you are someone fighting a case under International law in the country, it might be a good idea to know what a letter rogatory is and how it can possibly help you. As a lawyer, you will be the person both clients and judges will reach out to for understanding and preparing letters rogatory.

 

What Is A Letter Rogatory?

A letter rogatory is sometimes also known as a letter of request. It is a letter written by a member of one judicial body, usually a federal judge, to a member of another judicial body with a different jurisdiction, usually a different country, requesting judicial assistance.

 

If a federal court requires documents, witnesses or any other evidence that might help an ongoing case in that federal court, a formal letter requesting such assistance from a judge in a court of that country is sent out. These letters usually use diplomatic channels to be delivered; that is, they use diplomatic packages to deliver the letters. This means that it could take at least a few weeks for the letter to reach the judge and costs a few thousand dollars.

 

All the expenses related to letters rogatory is borne by the person or people who want the assistance and not by the US judicial system. Expenses include the charges for sending diplomatic packages, any expenses incurred in procuring the evidence, and the delivery of the evidence back to the US federal court.

 

Preparing To Write Letters Rogatory

You will need to do some research before deciding to draft and send a letter rogatory. In some cases, such letters might not be required, while in other cases, it might be less expensive than the few thousand dollars mentioned earlier.

 

  • Conventions and treaties: If the country you need information from is part of an international treaty or convention, it might make your job easier. If the country is part of the Hague Service Convention, there is no need for a letter rogatory. Certain other conventions and treaties make is relatively easier to get such letters across to the other judicial body.

 

  • Specific requirements: Some countries are known to be cooperative and if you need assistance from such a country, it would make sense to spend the time and money preparing and sending a letter rogatory. Some countries have direct channels available for such requests, which reduces the time and cost of sending such requests.

 

Drafting A Letter Rogatory

These are some basic pointers when drafting a letter rogatory to increase chances of assistance from the receiving judicial body:

 

1.  The language used must be simple, non-technical, and easy to understand.

 

2.  The request must specifically state the assistance required and avoid being vague to increase the possibility of the request being executed.

 

3.  The letters must be addressed correctly and to the correct authority in the receiving country.

 

4.  The letter must include details of the case, the parties involved, the request for assistance, any documents required to process the request, and details of the person or people to be contacted, when relevant. 

 

Letters rogatory may not always be relevant or necessary, so it is important to do your research and understand your requirements well. As a person requesting such assistance, you must be financially and legally prepared for the process. As a lawyer, you must understand every facet of sending such a request and advise your client accordingly.

 

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Maya Shulman, Esq.

Shulman Family Law Group

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If you are going through a divorce and have a kid, you know that there will be a child custody case that will decide who gets to keep the kid and who gets visitation rights. There are mediation services in California for child custody cases.

 

Child custody mediation helps avoid bitter child custody battles by getting a third party involved, one who understands the law and can help you sort out differences. Mediation is usually undertaken by a lawyer or attorney and can be quite useful, especially if you are expecting a messy divorce and a child custody battle with your spouse.

 

Preparing For Child Custody Mediation

 

Here are a few ways you can prepare for your child custody mediation meetings:

 

  • Have the basics handy: Basics include your work and travel schedules and your kid’s school timings, planned school trips, holidays, exams and tests, and special requirements if any, such as medication or therapy. You can make a list of these basics and print them out for your attorney and mediator and for your spouse, if required.

 

  • Create a potential plan for your kid’s life: A potential plan should include how you plan to go about parenting, changes in your work and personal schedules, how visitation can fit it, planning for vacations and short trips, who makes the major life decisions for your kid, and anything else that you think your child might require. Having a potential plan in place helps streamline discussions and make mediation sessions useful.

 

  • Meet with a counselor: If you or your kid feels agitated or if you are unable to keep your composure when talking about custody, it might make sense to talk to a counselor before going for mediation. This will help you remain calm during heated discussions, put your points across clearly during meetings, and ensure that you do not lose your cool in front of your kid.

 

  • Be open to negotiation: Even if you have a potential plan for your kid’s life in place and you feel you have it figured out well, you should be able to take suggestions and be open to change. The idea of mediation is to reach a consensus and avoid bitter custody battles in court, and negotiation is crucial to the process.

 

  • Keep your child’s best interests in mind: You may be extremely attached to your kid or hate your spouse, but you need to keep these factors aside when making a decision about your kid’s life. You must not overlook what your child needs because of your prejudices and emotions.

 

Tips To Ensure Your Child Copes Well

 

Ensuring that your kid is coping well is important at every step of the divorce and custody cases, and is essential. Here are a few things you can do to help your kid cope well:

 

  • 1. Speak to your child about what is going to happen and ensure they know what is going on and what is expected of them.

 

  • 2. If your child is expected to make decisions during the mediation, explain what the expectations are before the mediation so your kid can prepare for it.

 

  • 3. Ensure that you do not speak ill of the other parent in front of the kid, irrespective of how the divorce and custody are proceeding.

 

  • 4. Take your kid to a counselor before and during the mediation if your kid seems to be confused or is struggling to cope with everything that is going on.

 

It is important to constantly remind yourself during custody cases that the priority is the child and not you or your differences. You must put your child’s interests before yourself and ensure you do what is best for your kid.

 

 

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Maya Shulman, Esq.

Shulman Family Law Group

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