Spousal Support

“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.

Child Support

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.

Child Custody

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.
Child Support

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.
California Divorce, Child Support

How Are Future Bonuses Handled in California Child Support Cases?

The end of a marriage is often more than just two adults deciding that their relationship is at an end. Often, instead, the end of a marriage is also the beginning of a new relationship between two adults as they learn to navigate the world tied to an ex-partner and as co-parents to their children. When a marriage ends and there are children involved, the question is no longer about how the relationship ends, but instead how the children are taken care of.

In a divorce with children, one of the court’s main concerns becomes the best interest of those children. The court is interested in ensuring that the children are properly supported, a responsibility that falls equally to both parents. The court has the ability to ensure this occurs by ordering payments in any amount necessary for the support, maintenance, and education of the children.

The support that the court orders will be based upon maintaining the same standard of living for the children, regardless of which of the parents are being assessed. In determining this standard, the appropriate amount will take into consideration all income of both of the parents, and it includes any bonuses that either spouse receives regularly.

One parent’s income may be irregular as it comes, in part, from bonuses or commissions. A parent cannot shield or hide a portion of his or her income from being used by claiming it is a bonus, especially if that bonus is a regular part of his or her annual income.

In fact, California Family Code § 4064 specifically states that the “court may adjust the child support order as appropriate to accommodate the seasonal or fluctuating income of either parent.” Often the court will make a percentage determination—ordering the parent to provide the child with a percentage of all future bonuses. This allows the court to take into account the inconsistent and prospective nature of such income. The courts will not allow a child to be disadvantaged simply because a parent’s income does not come on a regular schedule or amount.

If you or someone you know is facing divorce and have minor children in need of support, the help of an experienced family law attorney can make a hard and potentially confusing experience easier to navigate. If you’re in this position, it is in your best interest to consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will make sure you successfully navigate California child support law. Make the call today to learn how our attorneys can help: (415) 293-8314.

California Divorce

How is Contempt of Court Used in California Divorce Cases?

All courts have an undeniable interest in ensuring that their orders and procedures are respected and followed. This holds true in California’s family courts, as well. Violations of a court’s order to do—or not to do—something, is known as contempt of court. In California divorce cases, contempt of court has special consequences. It may be enforced by the court on its own motion or can be brought to the court’s attention by the parties to an action.

The punishment for contempt of court in a California divorce case is specific. When an individual is found guilty of contempt of court, he or she may be fined up to $1,000, imprisoned for up to 5 days, or both, per charge. If found guilty of contempt, the contemnor may additionally be ordered to pay the reasonable attorney’s fees and costs of the individual who initiated the contempt proceedings.

Some special provisions that apply to contempt of court in divorce proceedings include California Code of Civil Procedure § 1218.5(a), which reads as follows:

If the contempt alleged is for failure to pay child, family, or spousal support, each month for which payment has not been made in full may be alleged as a separate count of contempt and punishment imposed for each count proven.

Thus, pursuant to California law, there can be multiple counts of contempt charged for a repeated failure to pay child or spousal support in the Golden State. The statute of limitations for bringing such proceedings is three years from the date the payment is due. For the enforcement of any other order relating to family law matters, the statute of limitations is two years.

For each count of contempt, the punishment depends upon whether it is for the failure to pay an ordered support or for a violation of a provision of the divorce order. If there is a finding of contempt for failure to comply with a divorce order, the person who is found to be in contempt cannot then enforce the divorce decree against the other party, except as to the child, family, or spousal support.

In the case of contempt for a failure to pay court-ordered support, the punishment depends on whether it is a repeat occurrence. For the first finding of contempt, the court will order the violator to perform 120 hours of community service or spend up to 120 imprisoned. For the second offense, the penalty is community service and imprisonment for 120 hours each. For the third offense, the penalty is 240 hours of community service, 240 hours of imprisonment, and an administrative fee for the administration and supervision of punishment. These penalties, as noted above, can be cumulative, and added for each offence.

Contempt of court in California divorce cases is specific to the type of offense and whether it has occurred previously. If you or someone you know is involved in a divorce proceeding and there is a failure to follow the orders of the court, a contempt order is your next step for addressing this failure. The attorneys at the Law Offices of Judy L. Burger are experienced in contempt issues in family court cases. Call today to see how we can help you: (415) 293-8314.

California Divorce

How Can Facebook Affect Your Divorce Case?

Facebook is used by billions of people worldwide, with over 1.94 billion active monthly Facebook users. Its use is ubiquitous. People enjoy Facebook with their morning coffee, to get past the mid-week hump, and to pass the time and share the fun on their Friday nights. And many people using Facebook forget that they are not always aware of who their audience might be.

Facebook can be a great source of information regarding a lawyer’s own client, as well as his or her opposing client. Many people post activities on Facebook that they want to show as fun—but that can be a serious pitfall in a divorce proceeding.

In addition, by checking a person’s Facebook page, a lawyer is sometimes able to determine the user’s location, which can be helpful if the person has been evading service of process.

Other potential uses include important information about a person’s leisure activities. If child custody or visitation is an issue—since the standard a court uses to make decisions about children is what is in the “best interest” of the child—pictures and posts that demonstrate a propensity for drugs, alcohol, or promiscuity can paint a picture that allows the court to protect the child, despite contradictory testimony. Likewise, if a person is claiming financial hardship, pictures showing a lavish vacation or shopping activity could be presented to contravene that person’s in-court statements.

Divorce cases can be challenging for everyone involved. This is especially true when one party (or the other) forgets about the often public nature of Facebook and other social media posts. Remember that Facebook absolutely can affect your divorce case, allowing a judge potential insight into issues you may wish to avoid in court.

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer. 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.
Legal Separation

Pros and Cons of Default Judgment in Divorce

When a relationship does not stand the test of time, the people who once were a couple need to become individuals again. In California, this can sometimes be accomplished through the use of a default judgment for divorce. In a default judgment, one partner completes paperwork to have the court enter a divorce judgment and the other individual does not contest the divorce. In this type of default, the parties agree on the settlement provisions. As a result, the court is able to simply enter a default judgment.

A default judgment is sometimes the simplest and easiest method of having a divorce completed. It is usually less costly than litigation. However, there are both pros and cons to this method of ending a marriage.

Sometimes the people who are divorcing decide that having a default judgment is the method they want to use for divorcing, so they agree beforehand on how they want the divorce to be structured and bring that in for the entry of judgment. This allows them to have the ease of a default judgment and still ensure that their collective property is separated in the method they prefer.

However, there are many potential cons in using a default judgment in a divorce case, and using this method is not always appropriate. A default judgment should not be used if the parties are not in agreement about the distribution of the marital estate, if there is a situation of abuse of one partner by the other, or if the parties do not have a full understanding of the legal implications of the divorce. It is important for both parties to also understand that the party who is not initiating the divorce, also known as the respondent, is giving up his or her right to contest the court’s decision if no response is made.

Perhaps most important, however, is that failing to obtain the advice of an experienced California divorce attorney can result in giving up rights that a spouse may not even know he or she has, all in the name of “getting along.”

If you want to learn more about whether a default divorce might compromise your future, or that of your children, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.
Child Support

What Are Valid Reasons for a California Family Court to Deviate from the Child Support Guideline Amount?

According to Section 4057(a) of the California Family Code, child support is initially determined using a complicated formula that looks like this: CS = K (HN – (H%) (TN)). This formula takes into account several factors, include the parents’ income, the amount of the higher net earner’s net monthly disposable income, the parents’ time-share agreement, and the parents’ total combined monthly disposable income. By law, the result of applying this formula is “presumed to be the correct amount of child support to be ordered.”

However, there are certain special circumstances in which such stringent mechanical calculation of child support may neither be reasonable, or fair. These are special circumstances in which may a California family court deviate from the child support guideline amount. In fact, deviation is only allowed when permitted by law:

  • Both parties seem to have agreed to a different amount;
  • Selling the family home has been legally deferred and the home’s rental value is more than the mortgage payments, homeowner’s insurance, and property taxes;
  • The parent charged with paying child support “has an extraordinarily high income” and the amount calculated far exceeds the amount that would be actually be required to raise the child;
  • A parent’s contributions to a child’s care are not commensurate with that parent’s custodial time with that child; and
  • Special circumstances exist relating to time-share or special medical needs.

In all these cases, the family law courts must look at admissible evidence that succeeds in making a case as to why the guideline amount is inappropriate or unjust. Even then, the court must record the reasons for its decision in the case record whenever it deviates from the statewide uniform guideline formula amount. This includes describing why deviating from the guidelines is in the best interest of the children.

Arguing that the child support guideline amount should (or should not) be overridden takes skill and deep legal knowledge. If you’re in this position, it is in your best interest to consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will make sure you successfully navigate California child support law. Make the call today to learn how our attorneys can help: (415) 293-8314.

Child Support

What Mandatory and Discretionary Add-Ons Are There for California Child Support?

Most of the time, a noncustodial parent is responsible for child support because daily child care and expenses are vested in the custodial parent. This, however, is not a hard-and-fast rule.

The determination of child support in California is based on a complex calculation that takes into account the parents’ incomes, the time spent by each parent with the child, the standard of living for the child, the custodial arrangements, and each parents’ tax deductions.

The state-wide formula is applied for determining child support in California. Courts and family law attorneys customarily use this method to arrive at an appropriate number to be paid as child support. However, sometimes additional benefits over and above the “base rule” are made. This is done by providing for what are known as mandatory and discretionary “add-ons.”

The additional mandatory add-ons under California Family Law Code § 4062 typically include child care costs related to training for employment skills or requiring education to secure employment, as well as all reasonable healthcare costs for the child that are not covered by insurance, such as co-pays, prescription drugs, vision care, dental care, and orthodontic care.

Under the very same legislation, discretionary child support may also be granted, keeping in mind specific educational costs (such as those required to facilitate extra-curricular and recreational activities) and other special needs of the child, as well as travel expenses incurred during visitations.

Usually, both parents are responsible for sharing the mandatory and discretionary add-ons equally; however, in cases of a stark income gap between the two parents, the higher earning parent may be held responsible for greater obligations. This is calculated separately in accordance with Family Code § 4061(b).

There are rarely any changes made to the child support amount—not even when one of the parents re-marries.

Child support cases are not easy to understand and analyze. A trusted, experienced family law attorney can make a significant difference in how you deal with this intimately personal crisis.

The attorneys at the Law Offices of Judy L. Burger are experienced in child support matters. Call today to see how we can help you: (415) 293-8314.