What is the Difference Between Temporary Spousal Support and Permanent Spousal Support?

The term “spousal support” is discussed frequently regarding California divorces, but many people aren’t aware that there are different types of spousal support.  In California, a court can award either temporary or permanent spousal support depending on the situation.

As a preliminary matter, spousal or partner support in California cannot be ordered by a judge until a court case is started. The court case is usually a divorce, legal separation or annulment, but can also be a domestic violence restraining order. The difference between a “temporary” and “permanent” support order is the time that it is entered and the duration.

A spouse or domestic partner can request a support order to be paid while the case is going on.  This is a “temporary” support order as it is established temporarily to support a party during the case duration. This type of order is known under California law as a “temporary spousal support order” or a “temporary partner support order.” Particularly in situations involving domestic violence, a temporary support order is vital to ensuring the financial stability of a party during the course of proceedings.

For temporary spousal or partners support, a formula is often used to calculate the amount.  This formula can vary depending on which California county you are in. The court’s local rules for each county should explain how temporary support is calculated. 

As an example, in Marin County, the local rules state that the presumed amount of temporary spousal support is 40% of the net income of the party paying support, minus 50% of the net income of the supported party.  In the case where the supported party is also receiving child support, those percentages change to 35% of the net income of the payor (minus child support) minus 45% of the net income of the supported party (without considering child support received). 

As you can see, the calculation of temporary spousal support can be complicated and varies based on the county in which your case is pending.  This is why it is so important to hire an experienced divorce attorney to help you with the calculations of spousal support as soon as you file your case.

A “permanent” spousal or partner support order is usually entered at the end of a case when the judge makes a final determination regarding an award or the parties enter into a binding agreement.  This order will become part of the final divorce or separation decree and judgment.  There are various factors set out by California law that a judge will consider when determining an award of permanent spousal or partner support.  For more information on those factors, see our previous blog post here.

If you want to learn more about whether you qualify for spousal or partner support in your California divorce, separation, annulment, or domestic violence case, contact the attorneys at the Law Offices of Judy L. Burger right away.  Our office has years of experience helping clients obtain the support they deserve.  Call us now at (415) 293-8314.

permanent spousal support

Permanent Spousal Support: What Factors do Courts Consider?

In California, a court can award one party permanent support as part of divorce proceedings. This award is called “spousal support” for married couples and “partner support” for domestic partnerships. It is also sometimes referred to as “alimony.” 

California law has established specific requirements to guide judges in determining awards of spousal support in divorce proceedings. Prior to entering an award of permanent spousal support, a California judge is required to consider the factors set forth in California Family Code Section 4320

First, the judge will look at the earning potential of each party and decide whether they can maintain the same standard of living established during the marriage.  As part of this the judge will look at the marketable skills of the party asking for support, the time and expense it will take a supported party to develop marketable skills, and the impact of periods of unemployment on the supported party’s future job prospects (for example, a parent who stayed home with the children for several years and may now have trouble finding a job).

The judge will then consider the following factors:

  • Whether the party seeking support helped the other person obtain training, education, a career position, or licensing;
  • Whether the supporting party can afford to pay spousal support. This includes a consideration of their earning capacity, assets, and standard of living;
  • Each party’s monetary needs to maintain the same standard of living;
  • The debts and assets of each party, including separate property;
  • How long the marriage lasted;
  • Whether or not the party seeking support can work full-time without interfering with the interests of dependent children;
  • The health and age of the parties;
  • Documented evidence of any history of domestic violence or criminal convictions of an abusive spouse; and
  • Tax consequences to each party.

After considering these factors, the judge will balance the hardships to all parties and review any other factors that the court believes are fair and relevant to the determination.  The judge will then determine an award for spousal or partner support that will become a part of the final divorce or legal separation order. 

Spousal support determinations in California involve complex legal issues.  It is vital for you to be represented by an experienced California divorce attorney to ensure that you receive the awards that you deserve.  The attorneys at the Law Offices of Judy L. Burger have years of experience obtaining favorable support awards for their clients. Call today to find out how our attorneys can help: (415) 293-8314.

 

Termination of a Domestic Partership in California

California’s legal options for divorce extend to domestic partnerships registered in California as well as in other states. Termination of a domestic partnership in California is similar to the termination of a marriage with a few differences.

In order to terminate a marriage, California generally requires that a couple have resided in the state for at least 6 months prior to filing for divorce and at least three months in the county in which the divorce is filed. In the case of a domestic partnership that was not registered in California, these same residency requirements apply.

If the domestic partnership was registered in California, there are no residency requirements for dissolution of the partnership. This includes domestic partnerships that were registered in California where the parties no longer live in California or have never lived in California. By registering the domestic partnership in California, the parties have consented to California jurisdiction and no further residency is required. Note, however, that if neither party lives in California, the judge may have issues with ruling on matters such as partner support, debt and property, and child support. This is just one of the reasons why it is important to discuss your case with a lawyer with extensive experience with domestic partnership laws.

If the domestic partnership has been registered for less than 5 years, it may qualify for a “summary dissolution.” In order to qualify for a “summary dissolution” the following requirements apply:

• Both parties are in agreement to terminate the domestic partnership.
• The domestic partnership has been registered for less than 5 years.
• No children were born or adopted during the domestic partnership and no party is currently pregnant.
• Neither party own any part of land or buildings.
• Neither party rents any land or buildings (other than a current residence so long as it is less than a 1-year lease and there is no option to buy).
• The partners have not acquired more than $6,000 in debts since the date of registration of the domestic partnership (not including car loans).
• The total amount of property acquired during the domestic partnership is less than $41,000 (not including cars).
• Neither party has separate property worth more than $41,000 (not including cars).
• No partner is requesting support from the other.
• Both parties have signed an agreement dividing all of their debts and property or they attest that they have no debts or property together.

It is important to discuss the pros and cons of filing for dissolution of a domestic partnership with an experienced family law attorney. As termination of domestic partnerships in California presents unique issues, it is vital to seek the counsel of lawyers with extensive knowledge of California domestic partnership laws. Call the attorneys at the Law Offices of Judy L. Burger to find out how they can help you with your domestic partnership questions or other family law issues: (415) 293-8314.

What Information Do I Have to Provide with my Preliminary Disclosures?

As discussed in the previous blog post, Preliminary Disclosures are required for all
divorces in California. Preliminary Disclosures are a set of forms and documents that each party in a divorce must give to the other in writing providing information regarding all assets, debts, income and expenses.

Three forms are required by California law to be included as part of the Preliminary Disclosures: 1) Declaration of Disclosure (FL-140), 2) Schedule of Assets and Debts (FL-141), and 3) Income and Expense Declaration (FL-150).

Declaration of Disclosure
The Declaration of Disclosure form (FL-140) is a cover sheet signed by the party providing the disclosure under penalty of perjury. It attests that the Schedule of Assets and Debts and the Income and Expense Declaration are attached. It further requires that additional information be attached apart from the forms:
• The last 2 years of tax returns;
• A written statement of material facts relating to valuation of community property;
• A written statement of material facts relating to community obligations;
• A written statement regarding any investment opportunity, business opportunity, or other income-producing opportunity presented since the date of separation that results from any investment, significant business, or other income-producing opportunity from the date of marriage to the date of separation.

Schedule of Assets and Debts
The Schedule of Assets and Debt (FL-142) is a four-page form with questions related to the assets and debts of the person completing the form. The form requires disclosure of all assets and debts regardless of whether they are community or separate property. The form also requests an estimated value of the assets as of the date of completing the disclosure form and requires that statements be attached as proof of valuation. A party may indicate on the form whether they believe an asset to be separate property by annotating the asset with a “P” for “Petitioner” (the person who filed the divorce petition) or an “R” for “Respondent” (the person responding to the divorce petition).

Income and Expense Declaration
The Income and Expense Declaration requires a listing of a party’s income from all sources and expenses. This is different from the Schedule of Assets and Debts as it provides a “snapshot” of a party’s monthly inflow and outflow. The form has very specific questions that must be answered including special hardships, attorneys’ fees, and average monthly expenses. Like the Schedule of Assets and Debts, the Income and Expense Declaration also requires that supporting documentation be attached.

It is extremely important to be accurate in the completion of all of the disclosure forms. Providing incorrect or incomplete information can result in the judge awarding the entire asset omitted to the other party or an award of attorneys’ fees.

Remember that the “disclosure” requirement continues throughout the divorce process until the divorce is final. This means that if anything changes regarding assets, debt, income or expenses after the filing of the Preliminary Disclosures, you must fill out and serve a new set of disclosure forms on the other party to advise them of the new information. You would also then let the court know that you have filed updated disclosures by filing another Declaration Regarding Service of Declaration of Disclosure (FL-141) with the court.

The financial disclosure requirements for California divorces are very specific and the penalties for providing inaccurate or incomplete information are serious. It is important to hire an experienced California divorce attorney to assist you with completing these forms as part of the divorce process. Call (415) 293-8314 to find out how the knowledgeable divorce attorneys at the Law Offices of Judy L. Burger can help.

What are Preliminary Disclosures?

In divorce cases in California, both parties are required to provide a set of forms and documents regarding their finances to the other side. These forms and documents are called a “Preliminary Declaration of Disclosure” or “Preliminary Disclosures” and are required in order to get a divorce in California.

California law requires that specific forms be completed and provided to the other party as part of the Preliminary Disclosures. These disclosures are not something that must be requested by either side, there is an automatic requirement that each party provide this information to the other. Complete and transparent disclosure of financial assets is required. The forms and documentation required in the Preliminary Disclosures include detailed information regarding a party’s assets, debts, income and expenses.

The purpose of the Preliminary Disclosures requirement is to facilitate the ultimate goal of resolving all issues completely between the two parties, including a fair division of assets. The only way to reach a fair division of the assets is if both parties are aware of all of the assets held by both parties either individually or together. The Preliminary Disclosures also ensure that all parties are aware of each other’s finances and can adequately determine child support or spousal support where applicable.

Preliminary Disclosures are not filed with the court, but are “served” on the other party, either in person or via mail, as part of the divorce proceedings. Preliminary Disclosures must be served by the Petitioner no later than 60 days after filing the Petition for Divorce and by the Respondent no later than 60 days after the Response is due.

The only document filed with the court related to the Preliminary Disclosures is a “Declaration of Service of Declaration of Disclosure” which advises that the disclosures have been served. In the event that any information changes after service of the initial disclosures, updated disclosure forms must be served on the other side and a new “Declaration of Service of Declaration of Disclosure” must be filed with the court.

California law takes the Preliminary Disclosure requirements very seriously. The failure to provide complete financial information to the other party in the disclosures can result in serious consequences including the award of a hidden asset to the other party or a court order to pay the other side’s attorneys’ fees.

Preliminary disclosures are just one of many complex requirements for obtaining a divorce in California. An experienced California divorce lawyer on your side will make sure that you get the assets that you deserve. The attorneys at the Law Offices of Judy L. Burger are highly knowledgeable and experienced with obtaining positive results for their clients. Call us today at (415) 293-8314 to find out more about how we can help.

What is a QDRO?

Divorce proceedings are stressful and emotional for everyone involved. In the midst of chaos, it can be difficult to put together a comprehensive list of assets. One of the largest assets in a marriage that is often overlooked is a retirement plan. While retirement may be years down the road for many couples seeking a divorce, the division of that retirement plan must be addressed and approved during the proceedings. Failing to address the issue can lead to additional cost and a great deal of uncertainty down the road.
Retirement plan distributions ordered in divorce proceedings are governed by a document called a Qualified Domestic Relations Order (or “QDRO”). A QDRO is a court order or judgment for a retirement plan to pay benefits to the dependent of a participant.
A QDRO is different from a “Domestic Relations Order” from the court as it must be “qualified.” To be “qualified” means that the order must be approved by the retirement plan in order to be valid. During divorce proceedings, the QDRO is sent to the retirement plan for approval.

Why is a QDRO Important?
Obtaining a QDRO is an important consideration in divorce proceedings as it governs the division of a large martial asset and is the only way to receive a pay-out benefit from a retirement fund. A retirement benefit could be granted by a judge and listed in the divorce decree, but a party is not entitled to a pay out of any benefits from a retirement fund unless a QDRO was sought and issued. The retirement plan then uses the QDRO as the legal basis for making pay-outs to the beneficiaries listed in the Order.

Requirements for a QDRO
There are thousands of retirement plans in the U.S., each with specific requirements as to what information must be included in a QDRO. The IRS requires that a QDRO contain the following information:
• the participant and each alternate payee’s name and last known mailing address; and
• the amount or percentage of the participant’s benefits to be paid to each alternate payee.
While this is a bare minimum, it is also a good idea to include the name of each plan governed by the Order as well as the total time period or number of payments to which the Order applies.
Keep in mind that every retirement plan will have different requirements and may want additional information added to the QDRO. This is why it is important to submit the Order to the retirement plan as soon as possible during divorce proceedings and to make any revisions necessary to obtain approval prior to finalization of the divorce.

If a QDRO is not set up correctly, it may not be enforceable after a divorce. This is where a California divorce attorney with experience in obtaining QDROs is invaluable. The attorneys at the Law Offices of Judy L. Burger are highly knowledgeable and experienced with negotiating and obtaining QDROs. Call (415) 293-8314 to find out how we can help.

“Africa Diamond Scam” Case Differentiates Alimony and Property Settlement

Marriage is a beautiful thing, and for some people, it is the key to long-lasting happiness and even personal wealth. But even the beauty of marriage can wilt and wither, and what was once a happy flourishing relationship can turn to separation and divorce. In those cases, no amount of money can buy back the happiness of the relationship, and the division of property that is the marker of a relationship ended ensues. When a marriage ends, it often brings with it issues of spousal support – and that spousal support can take different forms.

Alimony is the form of spousal support that most people are familiar with – it is the payment if funds from one spouse to the other for ongoing maintenance. Alimony is designed to allow a recipient spouse to take care of himself or herself. Property settlement, on the other hand, is the division of the assets of the marriage. It is the separation of those things that the marriage has jointly acquired between the two individuals as they move in separate directions.

These two concepts seem similar but have different consequences for tax purposes. Generally speaking, property settlement has few to no tax consequences. Alimony, on the other hand, is taxable as income to the receiving party and deductible as an expense by the paying party. The different treatment does not change whether you are dealing with a multi-million dollar marriage or something much smaller, though the tax amount varies considerably.

The recent Enron case interestingly has even touched the world of divorce and the separation of property with that goes along with it. Byron Georgiou, an attorney associated with the case, entered into a divorce just prior to the completion of that case. Pursuant to the divorce agreement, his ex-wife was to be entitled to 10% of the fees he received from the case. When the case settled, Byron was awarded $55 million in fees. His ex-wife, Maria Leslie, was therefore entitled to $5 million. The language of the marital settlement agreement had placed the provision related to the fee award in the section of the agreement related to division of property. It then used language that clearly identified it as spousal support that was intended to be taxable income for the wife.

The responsibility to pay taxes is a serious one, and the United States Tax Court does not make exceptions based on mental health or divorce. Ms. Leslie was recently in front of them for failure to pay taxes. She had multiple arguments regarding the amount of taxes she was due and for which tax year. Leslie had been scammed for $400,000.00 in an African diamond scam, and the issues before the court related to whether the funds were intended as spousal support or were instead a division of marital property.

Leslie was fortunate to have the court find that money she had been swindled in the scam was properly considered a theft loss that she could legally write off. However, the court also found that the income she received from her ex-husband’s participation in the Enron litigation was taxable income to her. The court found that the language in the agreement identified it as such, even though it was in the section of the agreement on property settlement and even though it did not include any provision for termination at the time of her death.

Teasing out whether support is intended to serve as alimony or as a property settlement can have major consequences for both spouses. That’s one of the reasons it’s so important to make sure your divorce papers are handled by an experienced attorney who is an expert in California divorce law. Contact the attorneys at the Law Offices of Judy L. Burger today to learn how our attorneys can help in your case: (415) 293-8314.

Health Insurance and Child Support in California

The requirement to provide child support in California does not extend only to the requirement to provide financial support for the child. Pursuant to federal law, California has the additional requirement that health insurance coverage be provided as an additional form of support for all children.

The requirements that exist in the world of court-ordered child support are very specific and detailed. The state has become involved in maintaining the well-being of the child, and the state will ensure that the people responsible for that child – the parents – do so in a fair and comprehensive fashion. To that end, federal law mandates that states develop child support guidelines that apply in all cases and that clearly cover a child’s needs. The guidelines require support based upon the financial status of the parents, both custodial and non-custodial. 45 C.F.R. § 302.56.

A child support order from the court has numerous elements that may be specifically included as additional costs, such as child care costs related to employment, reasonable healthcare costs, educational or special needs of the child, and visitation expenses. The need to provide for healthcare costs is important for the proper care of a child.

Because both parents share an equal responsibility for providing care of their child, both parents share an equal responsibility for providing health care for a child. This means that both parents are responsible for their proportional share of costs for medical services, including emergency medical services. The costs for those services must be reimbursed to the parent who covered the expenses. Cal. Fam. Code § 3750 et seq.

The health care that must be provided for the child may be self-purchased or provided by a parent’s employer. If the insurance is obtained through the parent’s employer, that employer may not place restrictions on the child’s coverage such as the residency of the child, the marital status of the child’s parents, or the child’s dependency status on the parent’s tax returns. Cal. Fam. Code § 3750 et seq. The coverage obtained must include dental and vision services as well as medical coverage.

The proper care and responsibility for a child goes beyond simply providing shelter and food. For a child to grow into a healthy adult, he or she needs proper medical, dental, and vision care.

If you have questions about the law on child health care in California, contact an attorney who has deep experience in family law in the Golden state. The attorneys at the Law Offices of Judy L. Burger have the experience you need. Call today to see how we can help: (415) 293-8314.

Can a Court Require a Deposit of Assets from a Parent to Secure Child Support Payments?

It is difficult being a child these days, and it is equally difficult being responsible for the care and maintenance of a child. The responsibility for the care and maintenance of children falls equally upon both of their parents, whether either of them have actual custody of those children or not. There are times when one or both parents neglect this responsibility, and in those cases, the courts will often be required to step in and order the neglectful parent to perform their parental duties.

California courts have many tools available to them to meet their responsibility to make decisions in the best interest of the child. Either or both parents may be ordered to pay child support for their children. If necessary, the courts can get creative to ensure the obligation has been met. In specific circumstances, for a person who has been ordered to pay support who has not paid that support, the court can order the deposit and sale of assets. Cal. Fam. Code § 4610 et seq.

Under California law, if an individual who is responsible for paying child support does not do so for over 60 days, the court can order the deposit and eventual sale of that person’s assets to cover the cost of delinquent child support. This action of the court is one that can be taken if the parent is unable to show that the failure to pay support was not willful or in bad faith, and that the parent did not have the means to make the required child support payments. Cal. Fam. Code § 4611.

An order requiring the deposit and sale of assets is a serious measure for a court to take, but it is not done without the responsible parent having the opportunity to respond to the order and to take actions to convince the court not to enter the order. There are numerous grounds whereby an individual can convince the court not to enter such an order, such as illness, disability, or other circumstances that would make the order unjust, and there will always be a hearing prior to such a decision by the court. Cal. Fam. Code §§ 4610, 4612.

Having children is not a decision to take lightly, and doing so creates a responsibility that stays with you for your lifetime. If you or someone you know is faced with a failure to receive the child support to which you are entitled, a good attorney can help make sure the children you are responsible for are supported as they are entitled to. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

Can a Court Require Security for Child Support From a Parent?

Divorce is a complicated and confusing place to find oneself. Once a child is involved, the confusion and complication become magnified, and no longer is the court solely interested in finding an amicable solution that meets the needs of the spouses. Instead, the court becomes predominantly concerned with what is in the best interest of the child. In most divorce situations involving children, child support is an issue. It is the court’s responsibility to ensure that the child who is supposed to receive this financial support does in fact receive it.

In any type of legal action, there is always a chance that the person who ordered by a judge to do something will choose not to do it. This is no different in the case of child support. As much as we may like to believe that parents will act in the best interest of their children, that is not always the case. Because of this fact of human nature, California courts have the ability, upon a showing of good cause, to order that the parent who is required to pay child support post a security with the court. Cal. Fam. Code § 4012.

The amount of the security that can be required by the court is capped at the total support payment that the parent would pay over the next year, or an earlier time if the child support is scheduled to end in less than one year. These funds are held in an interest-bearing account and are available to the child if the parent who is required to pay fails to do so. Cal. Fam. Code § 4560.

Should the court-mandated child support not be paid, funds can be released from the account when payment is 10 days late, and the court will then require that the parent who is required to maintain the security account replace those funds. Cal. Fam. Code § 4570 et seq.

Once a court is involved in maintaining the best interest of a child, it will exercise the full extent of its ability to ensure that children are properly cared for and that the parents truly share the responsibility of having children. These requirements are designed to look after the best interest of the child, but they are not designed to be punitive in nature. For that reason, if a parent can prove undue financial hardship, the obligated parent may sometimes reduce the amount of money placed into the security fund. Cal. Fam. Code § 4565 et seq.

Divorce can be a messy place to find yourself, but you can rely on the California court system to do its best to ensure that the innocent bystanders – the children – continue to have the support they deserve from both parents.

If you want to learn more about the legal requirements for child support security and how they apply in your case, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.