Category Archives: divorce

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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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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alimony-spousal-support

What Is Spousal Support?

The phrase ‘spousal support’ basically refers to alimony. It is a fixed payment given to a spouse on a monthly basis after a divorce has been finalized. Why is spousal support necessary? Spousal support helps ensure that the dependent spouse is in a position to enjoy a decent quality of life, one that they have gotten used to during the period of their marriage.

 

It is critical for both spouses to be aware of their rights and obligations with respect to spousal support before the divorce papers are filed. Each partner must know important details such as the exact amount of support to be offered and the duration for which it will be paid. This information will help both spouses be prepared for what is to come.

 

Calculation Of Spousal Support In California

As mentioned earlier, the court orders for spousal support typically instruct one spouse to make a fixed monthly payment to the other for a certain period of time. The time period for spousal support is usually determined on the basis of the duration of which the couple was married and some other relevant factors. An experienced divorce attorney can guide couples with regards to calculation of the alimony money.

 

When the court is determining alimony, it would usually consider the income of the spouse who has received higher earnings as income in the last 12 months. Spousal support is meant for preserving the existing lifestyle and financial situation of a spouse as best as possible.

 

As far as the calculation of spousal support in California is concerned, the Solano Superior Courts follow the “Santa Clara Guideline” for temporary spousal support. LA, Ventura and Santa Barbara also follow the same guideline. The “Alameda Guideline” formula is followed by the Contra Costa and Alameda counties. According to the guideline, the support paid by a spouse should be approximately 40 percent of their total monthly income. This will be divided by half of the total monthly income earned by the receiving partner. In cases where child support is involved, the calculation of spousal support is done after the calculation of child support.

 

Time Duration For Spousal Support In California

Even though spousal support is offered for helping the lower income earning spouse, there are various ways in which it can be misused. Also, there is a common misconception regarding the permanency of spousal support. For those who are involved in a divorce litigation including spousal support, it is vital to have all the necessary information regarding issues which will be important in determining the support duration and amount to be paid or received.

 

In most cases, spousal support is not offered for the entire lifetime of the receiving spouse. The purpose of spousal support is to allow the partner to become independent within a realistic time period. In cases when the marriage lasted for less than 10 years, the court usually considers one-half of the marriage length as a reasonable time period for spousal support. For marriages with a duration that’s less than 10 years, alimony will be paid for half of the length of the time. For instance, if a couple was married for 8 years, then one of the spouses will be offered support for 4 years, that is, half of the marriage duration.

 

Spousal support works a bit differently for marriages that have lasted over 10 years. In such cases, the spouse providing support may continue to pay alimony to the dependent spouse until the time it is needed. The reason why there is no finite time period for spousal support in long-term marriages is because of the fact that the courts do not have a proper system for determining the same. However, this does not imply that California law is in favor of permanent spousal support.

 

 

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Maya Shulman, Esq.

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Divorce in dictionary

DATE OF SEPARATION IN DIVORCE ACTIONS: THE OLDEN DAYS, PROGRESSION, AND THE CURRENT VIEW FROM THE BENCH

 

The Olden Days

“Evidence showed that there was no final parting of the ways or intention not to resume marital relations under the same roof until such time as wife refused to permit husband’s return to their home”–Legislature adopted the Civil Code in 1872.

 

Progression

“The question is whether the parties’ conduct evidences a complete and final break in the marital relationship”. Marriage of Baragry (1977)

 

“The court held that “legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship”. Marriage of von der Nuell (1994)

 

Current View From The Bench

In our view, the language in these cases–requiring consideration of ” all of the relevant evidence” regarding ” ‘whether the parties’ conduct evidences a complete and final break in the marital relationship’ ” (Umphrey, Baragry), requiring both a lack of “present intention of resuming marital relations … [and] conduct evidencing a complete and final break in the marital relationship” (von der Nuell), and indicating that “[a]ll factors … are to be considered” in deciding the ” ultimate question” of “whether either or both of the parties perceived the rift in their relationship as final” (Hardin)–must be understood in the context of their facts, which reflect that in each case the parties had moved into separate places of residence. These cases do not address, and therefore are not authority for a conclusion that “living separate and apart” was intended by the Legislature, originally or subsequently, to require, as wife argues, only demonstrated conduct reflecting a subjective intent to part ways with no plan of resuming the marital relationship, which might, but need not necessarily, include physical separation. (Cornejo)

 

We conclude that living in separate residences “is an indispensable threshold requirement for a finding that spouses are living separate and apart”. This interpretation of the statutory language aligns with the common under-standing of the words, the statutory history of the provision, and legitimate public policy concerns.

 

 

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Maya Shulman, Esq.

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5a047da2-43eb-4567-91f9-a8a65d951fc0-original

SERVICE OF PROCESS ON A PARTY RESIDING IN A FOREIGN COUNTRY CAN BE A DAUNTING TASK FOR U.S. CLIENTS AND ATTORNEYS.

 

In a general scenario, a plaintiff starts a court case in the United States by lodging a complaint following which a court clerk provides a summons that demands the appearance of the defendant in the court. The complaint and the summons are typically termed as a legal ‘process’. Once the action is commenced, the plaintiff will arrange for the ‘service of process’. Service of process is crucial for establishing authority on the defendant in the case and helps ensure that he/she makes an appearance at the court proceedings.

 

The first step in filing a complaint against a person who lives abroad is to ask the court for an extension on the time period needed for serving the complaint on to the defendant.

 

According to the California Rules of Court Rule 3.110, a defendant needs to be provided with the Summons within two months after the original complaint is filed or 30 days post the filing of an altered Complaint.

 

Over 60 days are needed for serving a foreign defendant. Also, the court will sanction you in case you fail to show good cause with regards to why the foreign defendant was not served. When a defendant resides in a foreign country, it is considered to be a good cause.

 

Methods of Service in California

In California, it is possible to serve a defendant living in a foreign nation using any method listed under the California Code of Civil Procedure (amount of $415.40 for serving an individual living in a different state). Such methods would typically include substituted service, personal service, service via publication, and service via certified mail (return receipt).

 

You could also implement service through the methods allowed by the nation where service is made. This particular method can be used only if it is approved by a court in California.

 

In the first go, service of process on an individual living abroad may appear to be quite simple. But the matter could get complicated if the method of service is restricted by an international treaty. The Inter-American Convention on Letters Rogatory and the Hague Service Convention are the main applicable treaties.

 

The Hague Convention

It was in February 1969 that the Hague Convention came to be implemented for the first time in the United States. The convention offers the most common methods to serve parties in commercial or civil matters in foreign lands, that is, outside the United States. The Hague Convention has been ratified by more than 70 countries, including China, the Russian Federation, and the majority of the Western European nations.

 

Service Methods

The universally accepted service of process procedures is codified by the Hague Convention in commercial or civil matters among signatories. The service methods help eliminate the need for serving process via diplomatic or consular channels.

 

Under the Hague Convention, three key alternative methods of service are listed:

 

1. Using the official Central Authority of the state (Reference: Service through the State’s Central Authority)

 

2. Direct Service via agent in destination state (Reference: Service through an Agent in the Destination State)

 

3. Worldwide postal channels (Reference: Service through Postal Channels)

 

The Inter-American Convention on Letters Rogatory governs the ‘Letters Rogatory’ method for service. You need to send the Letters Rogatory to an official “Central Authority” in the country where the service is being attempted to get effectuated. This needs to be supported by several other documents including a copy of your complaint and information on obtaining legal aid in the US. If a nation has signed the Hague Convention, the service needs to be carried out as per the Convention rules.

 

 

Shulman Family Law Group

Maya Shulman, Esq.

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