Law Blog
Tuesday, September 25, 2007
New Case: pension division
Where the trial court found in a 1980 dissolution judgment that wife was
entitled to an interest in husband’s pension pursuant to the "Brown
Formula," but record did not reflect either an agreement of the parties to
employ the "time rule" or a judicial exercise of discretion to do so, it
was error for court to conclude 25 years later that Brown Formula was
synonymous with time rule. Given usage at the time and other
circumstances, reference to the Brown Formula is reasonably interpreted as an
indication that the court had then determined the community to have an
interest in husband’s pension and had directed that total accrued benefits
at retirement would be divided in kind in the future exercise of the
court’s discretion. In re Marriage of Gray - filed August 28, 2007,
publication ordered September 21, 2007, Sixth District Cite as 2007
SOS 5896
This is what happens if the formula for division is not stated in the court order or in the marital settlement agreement. They divided the pension and Wife may not not be able to get a "lump sum" cash distribution. She may take monthly payments instead. SLJ
posted by Susan Jeffries at
Friday, September 21, 2007
CoMamas Association
CoMamas Association: Two women who write about the relationship between mothers and stepmothers.
posted by Susan Jeffries at
Friday, September 14, 2007
Concealment defense to payment of support arrears
-FamLaw-
Past concealment is not a defense to payment of support arrears for a child who is still a minor. Trial court has no jurisdiction to retroactively modify support payments, other than in situation where supporting parent assumed partial custody. Statutes permitting child support payees to recover arrearages, while prohibiting payors from obtaining retroactive modification based on claims that payee's expenses were less than anticipated, do not violate payors' right to equal protection of the laws; prohibition against seeking modification retroactive to a date prior to filing applies equally to payors and payees. Trial court did not deprive payor of due process by rejecting his concealment and overpayment claims as a matter of law, rather than on the basis of hearing testimony. Federal subsidies for compensation of commissioners to hear child support cases do not deprive payees of due process.
In re Marriage of Tavares - filed April 27, 2007, publication ordered May 29, 2007, Fourth District, Div. Three
Full text http://www.metnews.com/sos.cgi?0507%2FG036122ily Labels: New Cases 07
posted by Susan Jeffries at
Pay Child Support or lose your passport
The State Department denies passports to noncustodial parents who owe more
than $2,500 in child support. Once the parents make good on their debts,
they can reapply for passports. Now that millions more people need passports
to fly back from Mexico, Canada, the Caribbean and South America,
collections under the Passport Denial Program are on pace to about double
this year, said fefderal officials.Labels: Child Support
posted by Susan Jeffries at
Divorce support group
Divorce Care offers divorce support groups throughout California. It is my understandig that many group meetings are held in churches, so this program might not be for everyone. One client attended a group and thought it was helpful.
http://www.divorcecare.org/Labels: support groups
posted by Susan Jeffries at
Tax on Divorce -related Attorney's fees
The legal fees and costs related to a divorce are ordinarily considered nondeductible because divorce is a personal matter and personal matters, with certain very precise exceptions, are not deductible. Only business expenses and expenses related to the production of income are deductible. Legal expenses related to a business are normally deductible, but if the fees are incurred for reasons related to the divorce, under the “inception of the right” or “origin of the claim” rules, it remains a personal expense and not a business deduction.
If you itemize your deductions, the following five sections of the Internal Revenue Code present separate opportunities for deduction of all or part of the attorneys fees, accounting fees and other expert fees incurred incident to divorce proceedings.
1. §162a(a) ordinary and necessary business expense.
2. §212(1) expense for the production or collection of income
3. §212(2) expense for conservation of income-producing property
4. §212(3) fee for tax advice
5. §162 business expense of a controlled corporation joined as a party to the divorce.
It is possible to structure one’s affairs for maximum tax advantages. Some of the opportunities include:
1. If you are ordered or agree to pay your spouse’s attorneys fees, have them characterized as spousal support. This must be negotiated.
2. Keep track of the attorneys fees related to tax matters or tax planning. (Questions about sale of the home, transfer of assets, IRA withdrawal?) Even though they are personal, these fees are deductible if tax advice is included.
3. Ask for spousal support as part of another request. The cost to obtain or enforce an award for spousal support is deductible. (This only works if you have a reasonable likelihood of success) The cost to prevent a spousal support award or reduce the amount you must pay is not deductible.
4. Ask for “Family Support”. It is treated the same as “spousal support” so the related attorneys fees are deductible to the payee (but not to the payor, sorry).
5. If you have a business, you can deduct legal fees related to business advice which you would have obtained even if there were no divorce. For example, tax advice, tax planning, organizing your corporate records, appraisals of property or business assets for business purposes such as a loan application, a new balance sheet, sale of the business which was considered before or separate from the divorce. .
Family law is one area of taxation that is difficult for most to comprehend so if you have problems, you are not alone.
Call for help before the end of the tax year, while there is still time to make changes for this tax year.
One of the unique features of our firm is that Susan has been a practicing tax attorney for over 25 years and can provide us with tax advice whenever we need it. She stays up to date on family law taxes as well as related business and personal taxes because she is actively involved in tax training activities (both giving and taking tax seminars). Her background in business also provides us with practical, working knowledge of corporate and business law.
Every case is unique so your situation may present other opportunities. If you want more help with taxes contact us or another tax professional.
Labels: Tax
posted by Susan Jeffries at
10 Quick Tax Questions about your divorce.
1. Q.... Should my settlement be based on face value or tax basis?
A. Both. The difference could put money in your pocket or take taxes out.
2. Q....If I move out, can I roll over the gain when the house is sold?
A.... No rollover. Now you get a $250,000 exclusion from capital gain if the home has been your "principal residence" for two years. See Internal Revenue Code Sec. 121 for more rules.
3. Q....We are over age 55. should we sell the house before or after the divorce?
A....Makes no difference. The "over 55" tax exclusion has been repealed and replaced by the $250,000 exclusion, IRC Sec. 121.
4. Q...Should we file a joint return?
A...Not unless your spouse only has W-2 income or you know and trust all the numbers on the return. .
5. Q...Can I make child support deductible?
A. Yes.... If you also pay spousal support you can combine them as “family support” provided there is no calculation in the order that would identify either spousal or child support.
6. Q....What happens if my agreement lets alimony continues after death of the recipient?
A....The IRS may treat it as a property payment and you lose the deduction.
7. Q....Are taxes and proceeds from sale of property split in the same proportion?
A...No
8. Q....Can I pay all the alimony I owe in the first year.
A... Yes but you may lose the tax benefits related to payments that qualify as “alimony”.
9. Q...Should I fight for the dependency exemption?
A....Not unless it will do you some good. A spouse with no income pays no taxes, so the deduction is worthless to them.
10. Q....Do I need a tax expert?
A.... Yes, if you have valuable assets or suspect tax violation on past returns..
Every situation is different. If one of these questions or answers fits your situation, you should see a tax professional.
You need tax advice to plan for the result you want and avoid unpleasant tax surprises.
posted by Susan Jeffries at
Counting the days for service. Court or Calendar?
CCP 1005(b) . . . all moving and supporting papers shall be served and filed at least 16 court days before the hearing. .. . However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California.
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A "court day" is a day when the court is open, i.e. no weekends or holidays.
A calendar day is any day on the calendar.
To serve papers by mail for a regular motion you need to add
5 calendar days for mailing inside California
10 days for mailing inside the US
20 days for mailing outside the US
Service is complete upon deposit in the mail delivery system.
Then you must add:
+16 court days to serve the Motion;
+9 court days to serve the Response;
+5 court days to serve the Reply
How do you count the days?
Do you count the 16 court days first and then add on the five calendar for mailing at the end? No.
You should be counting the mailing days before the court days.
What difference does it make?
If counting starts forward with 16 court days from mailing date and then add five calendar days for mailing, it does not comply with CCP 1005.
If counting is back 16 court days from September 27th and then add five calendar days for mailing, it does comply with CCP 1005(b).
EXAMPLE
Motion set for hearing on September 27, 2007.
Motion served by regular mail on August 30, 2007.
Monday September 3, 2007 is Labor Day.
If service by mailing is on 8/30
8/31 is day "1" and 9/4 is day "5" because of mailing.
The fact that 9/3 is Labor Day is irrelevant for mail days, all calendar days are counted.
9/5 is the first "court" day after the mailing days;
9/26 is the 16th "court" day before the "hearing" on 9/27
The motion was timely served on 9/26. If the deadline lands on a holiday, then service is completed on the next non-holiday day.
*Special and emergency motions have differemt days for service.
Questions? Ask the attorney.
Labels: Procedure Tips
posted by Susan Jeffries at
10 Danger signs of a Marriage in Trouble
1. Hogging anything - shutting you out of the family life, children, money, information, activities, attention
2. Anger blamed on the non-angry person
3. Criticizing all of your friends, family, co-workers and driving them away
4. Obsessive/distractive behavior - sex, drugs, shopping, gambling, stalking, etc
5. No time for the family - work, sports, Mom are more important
6. Controlling & monitoring your spending, your friends, your time but you know nothing of their spending, friends, time, etc.
7. Secrecy about family accounts, personal funds, work, travel, etc
8. Jealously that is unreasonable and can’t e satisfied
9. Opposing party is always “checking up” on you so you start staying home, avoiding friends, accounting to opposing party for money and time
10. Not having your own time, money, bank accounts, privacy.Labels: Marriage tips
posted by Susan Jeffries at
Wednesday, September 12, 2007
Test Post
This is a test post to see if it's working and to see how the words wrap in the body of the post. This is a bold piece of text. Italics is good. This one is italic. How does it look?Labels: TEST
posted by Susan Jeffries at
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