Posted January 21, 2016 in Family Law by Michael Lonich.
The Kardashians always seem to be in the news. While the Kardashians are widely known for their expensive lifestyle and new fashion trends, Kourtney Kardashian was all over the news after her split with Scott Disick. Kourtney and Scott were together for about 9 years and have 3 children (Mason, 6, Penelope, 3, and Reign, 1]). However, while there seems to be no issue with Kourtney keeping the kids, what happens to the children after a split when you are not married?
The concept of a “common law marriage” no longer exists in California. Thus, simply living together does not give rise to a “marriage” or other legal marriage-like union under California law. This means that a non-marital cohabiting relationship does not give rise to “spousal-type” rights, obligations or remedies (except under certain circumstances in an invalid marriage, a “putative spouse” or under a Marvin claim, where non-marital partners have the right to enforce expressed or implied agreements for support or property sharing in the event of a separation).
However, there are certain family statutory rights and obligations that arise regardless of there being a formal marriage. Child support, for example, is a statuary duty to support minor children (and certain adult children) imposed on the parents regardless of them having ever been married. California Family Code § 3900 provides that both the father and mother of a minor child have an equal responsibility to support their child. This duty continues until the unmarried child completes the 12th grade or attains the age of 18, whichever occurs first. However, the law does not limit the rights of parents to agree to provide additional support. A child support obligation between non-marital cohabiting parents is enforceable either through a parentage action or other action under the Family Code. Similarly, non-marital cohabiting partners have custody and visitation rights similarly to those formally married.
If you have any questions about child support or child custody, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Posted December 16, 2015 in Family Law by Michael Lonich.
Holidays are the time in the year in which we all look forward to spending time with our family, friends, and loved ones. Consequently, dealing with divorce during this time of the year can be challenging. However, these five holiday tips may help to ease this difficult time.
1. Choose Who You Spend Time With. The holidays are usually filed with holiday parties and gatherings, however, these events may be stressful for a newly single person. While it is important to practice socializing in your new single lifestyle, you should not force yourself to go to these events. Only go if you expect it will be a pleasant experience for you. If not, then this is also an opportunity to start creating new holiday traditions in which you can find enjoyable.
2. Take A Break From The Divorce. During the holidays, things tend to slow down and not much is likely to get done. For this reason, this time of the year is a perfect time to take a break from the stress of divorce and focus on yourself. Take some time to refresh yourself and do something special to welcome your better life to come, such as reconnecting with old friends.
3. Make Plans to Fill the Voids. Even if you are doing something by yourself, it is still a plan. You can watch a new movie or even read that great book you have been wanting to get to.
4. Get Real. Remember that there is no “perfect family” like those Norman Rockwell paintings. In today’s world, families come in all shapes and sizes, so feel comfortable with your new situation because you are not alone.
5. Be Fair with the Children. While the holidays may be a difficult time for you, it is just a difficult, if not more so, for your children. They need to know that it is okay to spend time with both their parents and that they should not feel obligated to choose one over the other.
These are just a few tips available to individuals dealing with divorce during the holidays. The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. If you are interested in learning more about scheduling where your children will spend the holidays, please contact Lonich & Patton for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Posted December 15, 2015 in Family Law by Michael Lonich.
Many individuals negotiate and finalize their divorce without taking into account the tax impact of the decisions they are making. However, there are several tax traps that people could avoid while preparing to undergo divorce proceedings, which include their division of assets, their tax filing status, alimony, and child support.
One of the most hectic and stressful processes during divorce is the division of assets. However, instead of worrying about getting half of everything, there is something that individuals can do before they get divorced that would save them money. Before signing the divorce papers, the parties may transfer property tax-free using a property settlement agreement. Using a property settlement agreement, the ownership of major assets can either be signed over or the property can be sold and the proceeds can then be split amongst the parties.
Depending on an individual’s specific situation, certain filing statuses may be more beneficial than others. If an individual is legally divorced by December 31st, then he or she must file either as “single” or “head of household.” These statuses may also be used if parties have a legally binding separation agreement, or if the parties have lived apart for at least the last six months of the tax year. However, if the parties are still legally married as of December 31st and are still living together, then they must file as either “married filing jointly” or “married filing separately.” Generally individuals who file as either “head of household” and “married filing jointly” have lower taxes than those who file as “single” or “married filing separately.” So even though an individual may be going through divorce, he or she may still find it beneficial to file a joint tax return to save money.
Oftentimes, parties forget that alimony is considered taxable income for the recipient and an above-the-line tax deduction for the payer. It would be beneficial to the recipient of alimony to add his or her monthly alimony taxes into their monthly budget in order to understand how much alimony they really need.
While alimony can be considered in tax returns, child support payments cannot be included on the recipient’s tax return and they are not deductible to the payer. However, the payer of child support may remit the payments in the form of alimony in order to save money on taxes. Though the IRS allows this, any alimony that does resemble child support may not be fully deductible.
In an already costly process, these few tax tips may be able to help individuals save some money. While taxes may be the last thing on their mind, they should be prepared for these tax changes as soon as possible.
If you have any questions about taxes in the divorce process or any other issue, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Posted October 27, 2015 in Family Law by Michael Lonich.
No one marries with the intent that they will divorce someday. However, there may be a point in a relationship when it is clear that marital dissolution (i.e., a divorce) is inevitable. How the parties proceed after this point can make the difference between an amicable, peaceful conscious uncoupling and a nasty, drawn-out battle.
Even though a trial, complete with a judge and court-room setting is glorified on television, most cases do not make it to trial and are more commonly resolved with a settlement. Contrary to what some believe, a divorce does not have to go to court. Parties looking to divorce may resolve their dispute through informal negotiations by using out-of-court alternative dispute resolution (commonly referred to as ADR). These proceedings between you and your spouse along with your attorneys promote voluntary settlement though they can also include traditional court proceedings.
Several ADR processes that family law attorneys use are mediation and arbitration in lieu of proceeding to trial. These forms of dispute resolution are gaining in popularity and are shifting the role divorce attorneys play from representing their clients in a legal battle to acting as divorce mediators who help their clients achieve their goals. In order to determine which approach might be right for you, it’s helpful to understand the process each one entails.
The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. In mediation, a professional mediator works with the conflicting sides to explore the interests underlying their positions. Parties in mediation find it effective at allowing them to vent their feelings and to fully explore their grievances.
Mediation sometimes requires the parties to sit in a room together, while other times the parties are in separate rooms and the mediator goes back and forth. This is typically referred to as Kissinger style shuttle diplomacy after it was used to describe the efforts of the United States Secretary of State, Henry Kissinger.
Mediation may be particularly helpful when parties have a relationship they want to preserve (e.g., family members, neighbors or business partners have a dispute) or when emotions are getting in the way of finding a resolution. An effective mediator can hear the parties out and help them discuss issues with each other in an effective and nondestructive manner.
Another form of alternative dispute resolution in family law cases is arbitration where a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues their case and presents relevant evidence, and then renders a binding or non-binding decision, depending on the type of arbitration entered into. Arbitration is less formal than a trial, and the rules of evidence are often relaxed.
Although used more often in civil litigation, arbitration is less often used in divorce cases. In marital dissolution cases, an arbitrator’s decision is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date. It is important to keep in mind that most out-of-court alternatives for resolving a divorce will still require some level of court approval.
Perhaps the most recognizable form of dispute resolution, litigation involves two parties facing off before a judge or judge and jury (Currently, Texas and Georgia are the only states that offer spouses the opportunity to litigate their divorce before a jury). During the trial of a divorce case, the attorney’s for each party present evidence on contested issues while the judge (or jury) is responsible for weighing that evidence and making a ruling.
Typical issues that arise in litigation are the determination of the separate property of a party, how to divide community property and liabilities as well as determination of the validity of a pre- or post-nuptial agreement. If children are present the custody arrangement, child and spousal support as well as the time sharing schedule of the children are often areas prone to increased litigation.
It is important to keep in mind that all of the alternative dispute resolution processes are available in settling any ongoing dispute such as property division, child custody or support. However, the effectiveness of these alternatives in contrast to a full trial depend on factors such as how willing the parties are to work on resolving these issues and the general degree of animosity between them.
These choices can make the decision to divorce a complex field. If you are considering filing for divorce, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information. Also, please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Posted August 28, 2015 in Family Law by Jillian Green.
With the rising cost of colleges around the nation, many parents have planned ahead for their children’s future and have started college savings accounts for their children shortly after birth. However, there is no question that tensions rise surrounding financial matters during divorce. Nonetheless, when it comes to a child’s college fund there needs to be a process of communication for the sake of the child’s educational and financial future.
In order to make communication easier, a framework should be set up during the divorce settlement process. Usually the hardest, and initial question, to address during the creation of the framework, is who will own the college savings plan (or 529).
As many parents know, a 529 plan is an education savings plan that is operated by a state or educational institution designed to help families set aside funds for future college costs. While many parties believe that a 529 plan is their child’s asset, it is actually an asset of the marriage and needs to be planned accordingly. Thus, parties need to discuss who will own the 529 plan. There are several options for the parties: 1) parents may either decide who will take individual control of the account, 2) freeze the account, or 3) split the account
1. Individual Control
If the parties decide to have one parent take individual control, that parent would be the only person who can make decisions regarding the use of the funds. It is recommended by experts for the control to go to the noncustodial parent. As certified financial planner Joe Orsolini says, “The noncustodial parent should own the 529 because the noncustodial parent’s assets and income are not included on the FAFSA. If the custodial parent owns the 529, then the value of the 529 will be included on the FAFSA, and this is especially important as the FAFSA asset protection allowance drops significantly next year.” This drop potentially means that families will be able to subtract less of their assets held in savings and investments from their net worth, which could decrease the student’s financial aid eligibility. If the non-controlling parent wants some security with the funds, he or she could be set up as an authorized user, which would allow him or her to see what is going on in the account and that parent should also be designated as the successor owner of the account.
2. Freezing the Account
Another option is freezing the funds, which would mean deposits are no longer made into the account and the money that is frozen in the account could only be designated for education purposes. Freezing the account prevents a former spouse from withdrawing money at any time for any reason. It also prevents a parent from using account funds to pay for the education of a child from a new marriage.
3. Split the Account
The last option is to split the 529 plan, which the judge can order and the state has to abide by. By splitting the plan, each half of the plan would be set up as a new account and owned by each individual spouse. However, if one party is worried about an irresponsible ex-spouse, he or she could set forth some clear language in the divorce decree that specifies funding to be used only for the child’s education. The court could also mandate the percentage that each parent will contribute toward the child’s education.
This divorce process is already difficult enough for all parties involved. Children should not be additionally burdened by the lack of a proper framework for their college education. For this reason, parents need to communicate and set up a proper plan for their child’s educational and financial future in order to ensure their child’s success for college.
If you have any questions about planning your child’s college funds during divorce or any other issue, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.