Posts Tagged ‘Redondo Beach Divorce’

California Divorce Blog–Divorce With Children

January 1, 2013

I often experience a rise in inquiries about divorce and child custody every January after the holidays.  If you are considering divorce I find that it is best to communicate with your children.  It is best to consult with a psychologist about how to approach this situation with children.  Children need stability and the divorce process can be very unsettling for children. Therefore, the following may be helpful.

1. If possible, tell the children together in private that the two of you will be getting a divorce. Obviously, certain situations will not permit this to occur. For example, if there is domestic violence in your relationship.

2. Make sure you tell the children that it is not their fault. Children often tend to blame themselves for the failure of your marriage or relationship. It is important to tell your children that you both will always love them.  Your children should feel like they are loved by both of you during the divorce process.

3. Do not alienate the other parent from the children. The children should not be forced to “choose sides” or agree with your reason for your divorce.

4. You should Co-Parent with the other parent. Even though the two of you have differences, it is extremely important to ignore your differences when dealing with your children and the other parent.

5. Add Structure to your child’s schedule. Divorce often causes your children to feel insecure.  Therefore, it is very important to have structure so your child will feel as secure as possible when going through a divorce. This means that a structured custody schedule is important to a child.  You do not want your child to feel as though he or she is constantly living out of a suitcase.

Obviously, these are general guidelines which may not apply to your situation. It is best to consult a professional psychologist or Marriage Family Therapist to further discuss.  I hope this helps some families with children who are experiencing divorce.  For any questions regarding your divorce please call Attorney Keith F. Simpson at (310) 297-9090 or visit http://www.simpsonlaw.net.

Tags:, , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | Leave a Comment »

California Divorce Blog–How to approach Divorce and the Holidays

December 25, 2012

The holidays are supposed to be a cheerful time but for many people who have a pending divorce or are newly divorced, the holidays can cause increased stress, anxiety and/or depression. People tend to focus on their family holiday traditions which can make people become further depressed. Here are some tips to help you through the holiday season.

1. Donate your time to a charity to give back and help others in need. This will also allow you to start a new holiday tradition which is beneficial to you and those benefiting from your service.

2. Reach out to friends or family for support. This is especially important for people who do not like to be alone during the holidays.

3. Start new holiday traditions.  This can be as simple as eating out at a restaurant, going to a movie or going outdoors for an excursion.

4. Co-parent with your ex-spouse.  Try to make an extra effort to co-parent so your children feel loved and cherished by both parents. It is very important to not say anything negative about the other parent in front of your children. Doing so will only add to your child’s holiday stress level.

5. If you and your ex-spouse are not speaking then remember that it is extremely important that both of you follow the court order regarding child custodial pick up and drop off.  Failure to do so will only add to everyone’s stress level.

I hope this helps families during the holiday season.  Please call Attorney Keith F. Simpson if you have any questions regarding divorce at (310) 297-9090 or visit his website at http://www.simpsonlaw.net.

Tags:, , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | Leave a Comment »

California Divorce Blog–Child Support, Spousal Support, Taxes and Wage Withholding

August 4, 2012

I am often asked how payment of Child Support and Spousal Support impact taxes.  Simply stated, Child Support is not tax deductible to the person paying Child Support. Therefore, the person receiving the Child Support is not taxed on the money received for Child Support. The reason for this is that Child Support is not considered to be income.

Spousal Support is considered to be income for tax purposes. Therefore, the person paying Spousal Support receives a tax deduction for the amount paid as Spousal Support. Similarly, the person receiving Spousal Support is taxed on the amount of Spousal Support paid because the Spousal Support is considered to be income.

I am also asked about how an employer is supposed to withhold child support or spousal support from an employee paycheck.  Before an employer deducts money from an employee’s paycheck for support, the employer must first determine the Employee’s “Disposable Income”.

How to Determine Disposable Income

There are two basic steps to determine how much to withhold for child support from an employee’s income: calculating disposable income and calculating allowable disposable income.

  1. Disposable Income = gross pay – mandatory deductions
    • Disposable income is the amount of earnings remaining after subtracting mandatory deductions from an employee’s gross pay.
    • Mandatory deductions include federal, state and local taxes, unemployment insurance, workers compensation insurance, state employee retirement deductions, and other deductions determined by state law.
    • Note that disposable income is not necessarily the same as net pay. An employee may have a deduction taken from his pay that is not mandatory, such as union dues or a credit union car loan payment, or some other voluntary allotment.
  2. Allowable Disposable Income = disposable income x CCPA % limit
    • Allowable disposable income is the maximum available for child support withholding. The ordered child support amount will usually be less than the allowable disposable amount and then the ordered amount maybe withheld in full. Even if the withholding order specifies a higher payment, the allowable disposable income is the most that may be withheld.
    • The Federal Consumer Credit Protection Act (CCPA) sets limits on withholding from an employee-parent’s disposable income based on his/her current family situation and child support payment history. The CCPA protects the employee from having an excessive amount withheld. (Some states have enacted laws that provide even more protection to the employee-parent’s income, although most states follow the federal limits.)
    • The withholding limits set by the federal CCPA are as follows:
      • 50% Supports a second family, with no arrears or < 12 weeks in arrears
      • 55% Supports a second family, and more than 12 weeks in arrears
      • 60% Single, with no arrears or < 12 weeks in arrears
      • 65% Single, and is more than 12 weeks in arrears.

Allowable Disposable Income Example

  • Weekly gross pay is $760
  • Weekly child support due is $295
  • Mandatory deductions total $151
  • Employee-parent is single and does not owe back child support

Note the following differences between net pay and disposable income in this example. The amount of disposable income, $609.00, is used to determine child support withholding limits, rather than the net pay, $469.

 

Disposable Income Net Pay
Gross Pay $ 760.00 $ 760.00
Deductions Less mandatory deductions only Less deductions
Federal income tax - 95.00 - 95.00
FICA - 45.00 - 45.00
Medicare - 11.00 - 11.00
Union dues - 10.00
Savings bonds - 25.00
Union pension - 30.00
Credit union car loan - 50.00
$ 609.00 $ 469.00

 

Step 1:
Gross pay – mandatory deductions = disposable income:
$760 – $151 = $609.00
Step 2:
Disposable income x CCPA % limit = allowable disposable income:
$609 x 60% = $365.40

Note that 60% is the applicable CCPA limit because the employee-parent is not supporting a second family and does not owe any back child support.
Allowable disposable income is the maximum available for child support withholding.
Allowable disposable income (from Step 2 above) is 365.40.

  • $365.40 > $295.00, so the full $295 is withheld for child support.

If you take the same example but increase the weekly child support payment to $400, you may not withhold the full amount due. By law, you may only withhold a maximum of $365.40. This means that the employee will fall behind by $34.60, and will be “in arrears.” Some states charge interest on the overdue amounts. The employee has the option of paying the underpaid amount directly to the issuing agency if he or she does not want to fall into arrears, or the employee may ask that the employer “voluntarily” withhold the unpaid amount.

Application of the Requirement

If there is enough allowable disposable income, the employer should remit the full amount of current support due for each order. Sometimes an employee’s earnings do not stretch far enough to pay all of his or her orders. If there is not enough allowable disposable income, the allocation method of the employee’s principal place of employment (state of official duty station) must be followed to determine how much to pay for each order. States use one of two methods to allocate withheld payments among multiple withholding orders:

  1. Prorate by allocating a percentage to each order based on the total dollar amount of current support ordered; or
  2. Share equally by dividing the allowable disposable income by the total number of orders.

Multiple Income Withholding Orders – Same Employee and Different Children

If there is more than one withholding order, federal regulations require that some money must be paid to each order for current support. In addition, states have enacted laws specifying the method for allocating money toward current support due for each order. Thus, some money must be allocated toward all orders. The orders should not be paid on a “first come, first served” basis.

Example:

  • Order A current support owed: $ 220/biweekly
    Arrears owed: $ 50/biweekly
  • Order B current support owed: $ 200/biweekly
  • Order C current support owed: $ 180/biweekly
  • Employee’s disposable income: $1000/biweekly
  • Allowable disposable income: $550

Because employee is supporting more than one family and is in arrears, the CCPA limit is 55% x disposable income (55% x $1000 = $550)

Withholding:

  • Total current support owed: $600/biweekly
  • Total arrears owed: $ 50/biweekly
  • There is not enough allowable disposable income ($550) to withhold the entire amount of current support due for all these orders ($600). Therefore, nothing may be withheld to satisfy the arrearage.

The issue of withholding Child Support and Spousal Support can be a tricky issue whether you are a party to a legal action or an employer tasked with the legal duty to withhold the proper amount of support. Please contact Attorney Keith F. Simpson today to discuss your legal issue at (310) 297-9090 or visit http://www.simpsonlaw.net to view more information.

Tags:, , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | 1 Comment »

California Divorce Blog–Spousal Support

May 31, 2012

Spousal Support Also Known as Alimony:

Spousal support or alimony is the term used for payments from one spouse to another after a divorce for the purpose of maintaining the former spouse at a standard of living similar to that enjoyed during the marriage. You may be more familiar with the word “alimony” which is the same as “spousal support”. Spousal support laws seek to prevent a divorced spouse from suffering from a decrease her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.  Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources for that spouse to met her own needs.  Throughout these questions and answers the words “spousal support” and “alimony,” are used interchangeably

  Concerns About Spousal Support:

Spousal support can be a tremendous strain on your finances. It is a highly litigated issue because of the possible future expense you may owe your spouse.

Use of DissoMaster Program by Court:

While the court may use a computer program or guideline to calculate a temporary spousal support amount pending trial in the matter, the court is not allowed to use the DissoMaster in calculating permemenent support.  In re Marriage of Olson (1993) 14 Cal.App.4th 1 (Permanent spousal support order based on DissoMaster reversed for failure to consider all 4320 factors).

The Court’s View of a Cheating Spouse:

California is considered a no-fault jurisdiction.  Accordingly, the court will not consider your spouse’s infidelity in determining spousal support.  However, if your spouse is cohabitating (living under the same roof with a spouse of the opposite sex in a romantic relationship) the court must presume that she has decreased need for spousal support.

Attorney Fees and Costs:

Not necessarily!  It’s always a good idea to try to negotiate an out of court settlement to save legal fees, but often there are significant advantages to actually litigating spousal support.  In many cases if you reach an out of court settlement the spousal support order is indefinite in nature—it continues on forever.  Also oftentimes such out of court settlements do not establish the “marital standard of living” an exact dollar amount that is necessary for your spouse to have in order for them to continue to maintain the “marital standard of living.”   If you don’t have such a finding regarding the dollar amount necessary to satisfy the standard of living it will be very hard to come back in the future and seek to modify or terminate the spousal support.  Oftentimes such settlements don’t take into account your spouse’s earning capacity as established by the testimony of a licensed vocational counselor.  And often there is no “Gavron Warning”.  If you look at this issue as a long-term obligation that can span several decades, then you may have a significant advantage in litigating alimony to ensure that you have set the case up correctly for eventual termination of spousal support.  All to often the paying spouse is in a hurry to get their divorce over with at all costs, and does not consider the long-term implications of paying spousal support for 10-20 or more years into the future with no relief in site.  Litigation often offers tremendous advantages in resolving spousal support in your favor.

Relevance of a Long Term Marriage (In Excess of 10 Years):

In California marriages of 10 years or more are considered marriages of long duration, and as such the court is not allowed to set a definite termination date for spousal support at the time of trial.  Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration.  This is clearly NOT the case as is proven by the citation below:

As recognized by our Supreme Court the public policy of this state has progressed from one which “entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to postdissolution support for only so long as is necessary to become self-supporting.”

In re Marriage of Schmir (2005)  134 CA4 432.  Also note that while the court can not terminate spousal support by a certain date, they are still allowed to provide that spousal support will terminate by a certain date unless the supported spouse makes application to extend the support on or before that date.  In marriages that are just over the 10 years, or where the spouse has excellent career prospects, this is often a fruitful strategy to pursue.  In marriages of less than ten years spousal support is presumed to no longer than for half the length of the marriage.

Effect of Retirement on Spousal Support:

Under a recent case called In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373  you are entitled to retire at age sixty five and can not be required to work to support your spouse beyond that age.  Arguably if you are forced into early retirement you may be able to convince the court that you should not have to continue to pay support.

Effect of Raise on Spousal Support:

No.  Under a case called Hoffmeister II the court can not consider your increased post-seperation earnings as a  basis for awarding support beyond that which is justified by the marital standard of living.

Effect of Reduced Income on Spousal Support:

YES. If you have been involuntarily terminated, or had your income reduced, you should be able to receive a temporary abatement of support.  And in many cases, if you are unable to obtain comparable employment, and have to take a pay cut, you may be able to receive a permanent spousal support reduction or even termination.

Effect of Self Employment on Spousal Support:

YES.  If your business has been effected by the recession and you are earning less you should be able to lower your spousal support obligation.

Effect of Bonus Income on Spousal Support:

These kind of orders are known as “Smith-Ostler” orders and are very problematic in the area of spousal support.  First, unless there is an annual cap these orders may end up providing your former spouse with way more spousal support than is consistent with the marital standard of living.  Second, these orders are difficult to enforce and calculate.  While there are some circumstances where these type of orders are necessary, they are not beneficial to the spouse that is paying spousal support.

Effect of Unemployed Spouse on Spousal Support:

Well you can’t force them to get a job, but you can obtain a vocational assessment and if they have not sought employment within a reasonable period of time you can have the court consider lowering or terminating their support.  They can also be “imputed” income, e.g. the court can assign them with fictional income if you can prove that they are purposefully avoiding employment and that there are positions available consistent with their abilities.

My spouse claims to be disabled?  Is there anything I can do about this?

Yes.  Oftentimes I see very non-specific claims of disability for “stress” or “depression” and the former wife claims she can not return to the workforce due to these types of conditions.  In other cases there may be a valid disability but the disability that may impact certain types of employment, but there may be other fields that are available.  For instance, someone who has a back injury may not be able to lift heavy boxes but may be able to work at a computer terminal.  In many cases I recommend that we obtain an Independent Medical Evaluation regarding the spouse’s medical condition to see what limitations exist, if any.  And once the Independent Medical Evaluation is completed we then retain a licensed vocational counselor to make recommendations as to what type of employment is available taking these limitations into consideration.

Will the division of assets have an effect on support?

YES.  If your spouse is awarded significant assets, or if you make significant equalization payments over time, this should be considered as a mitigating factor against spousal support.

Can I avoid paying support by declaring bankruptcy?

Spousal support obligations are generally non-dischargeable in bankruptcy.  Filing bankruptcy will not help you avoid spousal support.

Will I get any relief from support through taxes?

Spousal support payments are generally tax deductible to the payor and taxable to the recipient.

My ex-spouse has started living with her new lover. Can I use this to reduce or end support?

YES.  This situation is known as cohabitation and is generally a good reason to significantly lower if not totally eliminate spousal support obligations.

My ex-spouse is getting married again. Does this mean I can finally stop paying support?

YES.  Your obligation to pay spousal support ends upon her remarriage.  You may need to obtain an order terminating a wage assignment if there is a wage-assignment in place.

If you have any questions regarding your California divorce matter please contact attorney Keith F. Simpson in Manhattan Beach, California at (310) 297-9090 to discuss your matter today.

http://www.simpsonlaw.net

http://www.caldivorce.net

Tags:, , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | 1 Comment »

California Divorce Blog–Valid Marriage in California

December 7, 2011

I often am asked what constitutes a valid California marriage.  Does California recognize a “Common law marriage”?  The answer is no.  California does not provide for a common law marriage.  It does not matter how long a couple have been together in a committed relationship.  If you have not married your partner then you are not married pursuant to California law.

Elements of valid marriage

In general—consent, license, solemnization, authentication: A valid marriage under California law requires the consent of the parties to that civil contract. [Fam.C. § 300(a)] But the parties’ consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license (Fam.C. § 350 et seq.), solemnization (Fam.C. § 400 et seq.) and authentication (Fam.C. §§ 422–425); and the authenticated marriage license “shall be returned to the county recorder of the county where the marriage license was issued.” [Fam.C. §§ 300, 306; see also Fam.C. §§ 359, 360; Lockyer v. City & County of San Francisco (2004) 33 C4th 1055, 1075, 17 CR3d 225, 235–236; Estate of DePasse (2002) 97 CA4th 92, 101, 118 CR2d 143, 150]

What if you are married outside of California (or in a foreign country)?  The answer is that the marriage is valid so long as the marriage complied with all legal requirements of the jurisdiction where you married.  Typically, this means that you obtained a valid marriage license, the marriage was consensual and was authorized pursuant to law.

If the marriage is not a valid marriage then the marriage may be void or voidable (depending on the situation).  Therefore, it is extremely important when considering a divorce to first consider whether your marriage is a valid marriage under California law. If it is not a valid marriage then you may not have to file a divorce lawsuit.

If you have any questions regarding your California divorce matter please contact attorney Keith F. Simpson in Manhattan Beach, California at (310) 297-9090 to discuss your matter today.

http://www.simpsonlaw.net

http://www.caldivorce.net

Tags:, , , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | 1 Comment »

California Divorce Blog–Unpaid Child Support

May 21, 2011

I often receive questions from people about unpaid child support.  Can I still collect on unpaid child support? Does interest accrue on unpaid child support?  The answers to both of these questions are yes.

California law provides that a child support judgment is enforceable until paid in full or otherwise satisfied—even after the child reaches age 18. This includes interest and penalties computed thereon. (California Family Code Sections 291(a) and 4503).  See also Marriage of Hamer (2000) 81CA4th 712, 718, 97 CR2d 195, 199.

Regarding child support arrearages (unpaid child support), like all money judgments, California child support orders accrue post judgment interest at the legal rate of 10% per annum.  Unless the judgment provides otherwise, the interest accrues as to each installment when each installment becomes due and continues to accrue for so long as the arrearage remains unpaid. See California Constitution Article XV, Section 1; California Codes of Civil Procedure Sections 685.010(a), (b), 685.020(b); Marriage of Hubner (2004) 124 CA4th 1082, 1089, 22 CR3d 549, 553-554.  Since the interest on arrears accrues and is payable as a matter of law, trial courts are without authority to waive or forgive interest accrued on past-due child support amounts, just as courts cannot retroactively modify or terminate the arrearages themselves. See Marriage of Hubner (herein); Marriage of Robinson (1998) 65 CA4th 93, 98, 76 CR2d 134, 137; Marriage of McClellan (2005) 130 CA4th 247, 259, 30 CR3d 5, 14-15.

If you have a valid order or judgment for the payment of Child support in California, you have the right to demand payment and enforce the judgment. There are many ways to enforce a child support order (this will be a discussion for another time).  If the parent who is ordered to pay child support refuses to pay, it is important that you see an attorney immediately to discuss your rights and possible remedies. Please contact Attorney Keith F. Simpson at (310) 297-9090 to discuss your child support issues today!

The Law Offices of Keith F. Simpson, A Professional Corporation, is located at 1230 Rosecrans Avenue, Suite 170, Manhattan Beach, California 90266.  You may also review the website at http://www.simpsonlaw.net or call Keith Simpson to schedule an appointment.

Tags:, , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | Leave a Comment »

California Divorce Blog–Child Custody

October 2, 2010

The one issue in divorce cases which has the potential to make any case become extremely litigious and emotional is the issue of child custody. The breakup of a marriage is usually difficult enough. Try deciding who the children will live with and how often!!

Unfortunately, children often become pawns in a chess match when discussing child custody. For example, one spouse may be angry with the other spouse because of an affair. This spouse may attempt to extract revenge by not allowing the other spouse time with the children. There is a saying that in Criminal Law, you find bad people acting their best in court. In Family Law, you find good people acting their worst in court.

So what is the law regarding child custody? Who decides who will have the children? In California, family law cases are decided by a Judge or Commissioner. There are no jury trials in California Family Law Courts.

California law provides that it is in the public policy of the State to ensure minor children frequent and continuing contact with both parents after their separation or dissolution except when that contact would not be in the child’s best interest. California Family Code Section 3011 sets forth factors which indicate when it is not in the child’s best interest. If there is a question as to whether the issue of frequent and continuing contact conflicts with the health, safety and welfare of the child then the court will typically side with the child’s safety and fashion a visitation order to ensure the child is safe.

Parents often make the mistake of assuming that child custody is awarded according to what is in their best interest. This is not the case. Custody orders are often inconvenient for parents and that is because the orders are made according to what is in the child’s best interest.

If you have any questions about child custody issues please do not hesitate to contact the Law Offices of Keith F. Simpson, A Professional Corporation, to discuss your case today. Attorney Keith Simpson is located in Manhattan Beach, California. Attorney Keith Simpson writes this California Divorce Blog and practices Family Law in Manhattan Beach, California.

Tags:, , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | Leave a Comment »

California Divorce Blog (Divorce Options)

September 17, 2010

Welcome to the first blog posting from attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation.  Today I am going to write about options available to a person who has decided to file for divorce (also known as marital dissolution).

In California, a person has the option of filing a petition with the Superior Court of California for 1) Marital Dissolution (Divorce) 2) Legal Separation or 3) Nullity.

In California, a person may obtain a judgment of Marital Dissolution or Legal Separation on the following grounds: (a) Irreconcilable differences that have caused the irremediable breakdown of the marriage; or (b) incurable insanity.  The vast majority of parties filing for divorce choose the former “Irreconcilable differences” as the alleged reason for filing for a judgment of Marital Dissolution.  The Court typically makes a finding to the effect that the Irreconcilable differences have led to the “irremediable” breakdown of the marriage.  In my experience Courts tend to liberally construe the term “irremediable” breakdown of the marriage and order a judgment of Marital Dissolution so long as it appears that their is no possibility of reconciliation.

You should be aware that California has a residency requirement which must be satisfied prior to a Court entering a judgment for marital dissolution.  At least one party must have been a resident in the State of California for six months and a resident in the County where the lawsuit was filed for at least three months prior to the Petition being filed with the Court.  In the event neither party can satisfy this residency requirement, the parties may file for a Legal Separation and later (presumably six months) amend the Petition to a filing for Divorce. This will allow a couple who recently moved to California to proceed with filing the lawsuit and obtaining a Divorce Judgment as soon as possible (6 months).

A Legal Separation, unlike Divorce, does require the consent of both parties (unless the respondent does not appear and a default is entered against the respondent).  Also, a judgment of Legal Separation does not terminate the parties’ marital status.  This will allow a spouse to remain on the other spouse’s health care insurance plan.  If a party obtains a Divorce, the other spouse is precluded from remaining on the other spouse’s health care plan. This is a very important consideration which all parties should consider prior to requesting judgment for Divorce.

Nullity is a completely different concept.  A judgment of Nullity may only be granted by a Court when a marriage is void or voidable for the following reasons: (a) incest (b) bigamy (c) a spouse was not an adult when married (d) spouse was erroneously thought to be deceased (e) fraud (f) unsound mind (g) force (h) physical incapacity.  There is no statutory residency requirement to file a petition for a Judgment of Nullity.  There is also no consent requirement between the parties.  Finally, a Judgment of Nullity acts to nullify the marriage (as if the marriage never occurred).

Thank you for reading my first blog entry.  Please do not hesitate to contact Attorney Keith F. Simpson to further discuss any family law questions you may have at (310) 297-9090. Please also view our website at http://www.simpsonlaw.net or http://www.califdivorce.info

Tags:, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Uncategorized | Leave a Comment »

Follow

Get every new post delivered to your Inbox.