April 2018 Case of the Month

Case of the Month

In re Marriage of Schleich (2017) 8 Cal.App.5th 267.

In this case, the lower trial court tried to impose sanctions against the husband under Family Code Section 1101(g) for failing to disclose his separate property, post-separation income, and a car purchased after the date of separation with community property funds. On appeal, the appellate court overturned the sanctions against the husband with regard to the separate property assets. However, the appellate court noted that he may still be liable for sanctions under Family Code Section 2107 for breaching his duty to disclose the funds from the purchase of the car.

However, the husband’s failure to be cooperative and honor his duty to disclose during the divorce haunted him in the end. The wife asked for attorney’s fees due to the husband not being cooperative during the preliminary disclosure and discovery process. The appellate court dropped some of the fees that the wife requested because of the husband’s separate property issue talked about above. But in the end, the appellate court asked the trial court to resolve the attorney fees issue again. Overall, the wife is undoubtedly going to get some attorney’s fees paid for by the husband as a form of sanctions due to the husband not being cooperative during the preliminary disclosure and the discovery processes throughout their divorce.

What this means:

First, the courts cannot take your separate property assets and award them to your spouse as a form of sanctions against you. Second, it will save you more time and money in the end if you are cooperative during the preliminary disclosure and discovery process throughout your divorce.

Duty to Support Immigrant Spouses

When a person marries an immigrant (typically the immigrant spouse comes over on a 90 day fiance visa), the US Citizen spouse often will execute a form I-864 (affidavit of support of immigrant by sponsor). This form is executed to ensure that the immigrant will not become a ward of the state and it requires the US Citizen spouse (or other sponsoring party) to ensure that they will provide a minimum of financial support to prevent the immigrant from obtaining welfare.

This issue has led to confusion in the past over whether or not the execution of an immigration form establishes a duty to pay a minimal amount of spousal support in a Dissolution of Marriage action.  Recently, the California Court of Appeals (1st District) took on this issue and determined that while the trial court may terminate spousal support, the duty to provide a minimal level of financial support to the immigrant spouse continues and that the immigrant has no duty to mitigate or reduce that obligation by attempting to find work.  The case is In Re Marriage of Kumar (2017) California Court of Appeal 1 Civil A145181 13 Cal.App.5 ^th 1072, 220 Cal.Rptr.3d 863, 2017 FA 1800.  The opinion is not yet published but can be found on the Court of Appeals website here: IRMO Kumar

While an appeal has been made to the California Supreme Court and this issue may not yet be settled, it is important for any sponsoring individual to understand that signing an affidavit of support of immigrant form to bring a spouse to the US has long ranging consequences and may supersede the spousal support obligation under California law, which may terminate prior to the obligation under immigration law.

Taxes and Family Law

This information is provided courtesy of:

Jeremy Salvador

MIOD AND COMPANY, LLP
CERTIFIED  PUBLIC  ACCOUNTANTS

27200 Tourney Road, Suite 290
Valencia, CA 91355-5906
Telephone: (818) 898-9911
Facsimile: (818) 898-9922 

777 E. Tahquitz Canyon Way,
Suite 200-164
Palm Springs, CA 92262
Telephone (760) 779-0990
Facsimile (760) 779-0960 

The Trump Administration announced its tax plan, to cut taxes for every child, woman, and man.  But what does that mean for you and me?  From income for support to property division, We will be affected by this reform decision.  So here’s a few things I think you  should know.  The details of which are delineated below:

1. New Tax Brackets for Individuals – Trump’s plan attempts to simplify the tax bracket system from seven brackets (10%, 15%, 25%, 28%, 33%, 35%, and 40%) to three brackets (10%, 25%, 35%). 

2.    Single Tax Bracket for Corporations – C Corporations will be subject to single tax across any taxable income. The proposed tax is 15%.

3.      Eliminate the Alternative Minimum Tax and Estate Tax – The alternative minimum tax (AMT) is a tax that is typically triggered for high earning individuals. The estate tax is typically imposed on estates that hold eight-figures worth of assets or more. Under Trump’s plan these taxes will be eliminated.

4.      Getting Rid of Itemized Deductions – Trump will get rid of most personal itemized deductions to compensate for the three-tiered tax rates for individuals and the single tax rate for corporations. His plan will, however, keep the mortgage interest deduction and the charitable contribution deduction. This change in the tax system could have “yuuuuge” implications for California Family Law. See below:

Traditionally, alimony paid to a current or former spouse has been deductible against the income of the payor. If Trump’s plan gets rid of the personal and itemized deductions, the alimony deduction might be one of them. Settlements and judgements concerning deductible spousal support could have very different discussions.

Legal and accounting fees incurred to receive alimony have also traditionally been deductible as “other miscellaneous expenses” on Schedule A (itemized deductions) because these were expenses incurred in attaining taxable income. This deduction may not be available under Trumps plan. There may still be a way that a client can benefit tax-wise from these expenses. Give me a call if you’re interested in hearing how.

5.  State Tax Deduction – The final issue I think you should be aware of, is the interplay between federal taxes and state taxes. Historically, state taxes paid have been an itemized deduction when calculating federal income taxes. If the state tax deduction is no longer available, that would mean that Trump’s tax plan might actually have a negative consequence.

Overall, it seems like there are going to be some changes coming.

Your Divorce... And Death - Creating a Divorce-Proof Estate Plan

You’ve heard the old saying: “Nothing is certain but death and taxes.” While it’s something that many people don’t like to think about, we’re all going to die someday - and prudent people will plan for their death by creating a thorough estate plan. But there’s one factor that can unduly complicate your estate plan, and it’s something I see families effected by even when they think they’ve got a good estate plan in place: divorce.

Having a divorce can make a huge impact on your estate plan. If you haven’t worked with an experienced, knowledgeable, thorough estate planner to include divorce contingencies in your estate plan, it could create huge headaches for your family and could result in a lot of unintended consequences, including the decimation of your estate or having someone you wouldn’t choose raising your kids.


Plan for Divorce, Even if You’re Happily Married
When we’re happily married, we don’t want to think about the possibility that it could someday end in divorce. But with 40 to 50 percent of marriages ending in divorce, there’s a very real possibility that your circumstances will change in the future. Divorce doesn’t have to be acrimonious; maybe you each get buried in your work or your individual lifestyles, and simply grow apart. But it’s a good idea to include the possibility of divorce in your estate planning, as divorce can dramatically complicate your estate.

Think about a pre-nuptial agreement. When you create a pre-nup, you’re not stating that you expect your marriage to end in divorce. But you are planning for the contingency, just in case. It’s the prudent thing to do. Including divorce contingencies in your estate planning is along the same lines - it’s the prudent thing to do.


If You’ve Been Divorced in the Past, Estate Planning Gets More Complex
If you’ve been divorced in the past, your estate planning gets a lot more complex. This is particularly true if you have kids by a first marriage, and/or if you get remarried. What do you want going to the children of your first marriage, and how do you want to take care of your current spouse and children? Are you still on good terms with your first spouse, and do you want to leave anything to them?

If you’re not extremely explicit in your estate plan, having a prior divorce can dramatically complicate your estate. If children from a prior marriage make a claim on your estate, your family could find itself in probate court for a very long time while a judge attempts to make a fair call. You could find your estate being split in ways you didn’t intend, and could find that your family isn’t provided for in the way that you intend.

This can also be a huge problem if you have children. For example, what if you have kids from a prior marriage, but you have custody, and you and your new spouse are raising your kids? If you should die, will your new spouse become the guardian for your children, or will your first spouse file for custody? Who would you want raising your kids? How could a failure to plan for this scenario impact your children’s lifestyles - to see them ripped away from the family they know and not be cared for as you intended?

And then there’s the money question. If you’re not explicit about what you intend to leave to whom, your former spouse could use your kids by the first marriage to extract huge sums of cash from your estate. If your former spouse has custody of the children, the spouse could easily manipulate the estate to get a huge share of the cash or property. There are many ways the estate planning process can go awry after a divorce, so it’s important to work with an experienced professional to create a detailed, explicit plan for dealing with your estate and caring for your family the way you intend.


Know the Statistics, and Plan Accordingly
Do you know the statistics on divorce? Experts estimate that the lifelong probability of a marriage ending in divorce is 40 to 50 percent. And this statistic may surprise you, but roughly 65 to 70 percent of the time, it’s the wife who files for divorce. Even if you think you’re happily married, your spouse may not share your opinion and you could find your happy lifestyle ending in divorce.

Even if you’re not divorced now, if you are married, or if you could get married soon, it’s prudent to take care of the contingency in your estate planning documents. And if you’re about to get divorced or have recently been divorced, it’s a good idea to review your estate plan with an experienced professional to ensure your estate plan is complete and up to date.

Child Custody 101: Ex Moving Out of State

If your ex is threatening to move out of state with your child, you may wonder what your rights are under California child custody laws. Can your former spouse take your child and move out of state without your permission? If you’re the custodial parent, can you relocate without the other parent being involved? Here’s what you need to know if your child’s other parent is planning to move out of state and take your child with him or her:
Relocation can Only Occur Under Certain Circumstances
Relocation out of state can only occur if:

• All individuals who have custody rights to the child consent to the proposed relocation - OR -
• Court approves the proposed location

What this means for you is that if your ex is planning to move out of state and take your child with him or her, he or she can only do that if you consent to it, and/or the court approves the relocation. An ex or an individual with whom you share legal custody rights can’t take the child and move out of state without your permission unless the court approves it. If the custodial parent moves the child out of state without court approval and/or your permission, he or she is in violation of the custody agreement and may be subject to legal action.
Legal Process to Gain Permission to Move Out of State
When a custodial parent wants to relocate with the child, the former spouses or co-parents should meet outside the courtroom to make a legal agreement that modifies the custody terms. The new agreement should include things like:

• The amount of parenting time each party will have
• How much phone and/or email contact you’ll have with your child
• Travel arrangements for custodial visitation
• Who’s paying for travel for the purposes of custodial visitation

Even if the custodial parent is moving out of state, you still have the right to visit with your child. Travel for visitation may include provisions like: the child will travel to stay with you on school vacations, for certain holidays, or for periods of time over the summer. School complicates custodial visitation for out-of-state family; it isn’t as simple as weekend visitation; but both parents should work together to create a mutually satisfactory visitation schedule.
Once you’ve created a legal agreement to modify the custody terms, you’ll need to get it approved by a judge in order to become a legal part of the custody agreement.
If you and your co-parent can’t agree on a visitation schedule, or you won’t agree to let your co-parent move out of state with your child, he or she will need to go to court to get permission to move without your approval.
Moving the Child Out of State Without Your Approval
It is possible for the custodial parent to move the child out of state without your approval - as long as he or she gets the court’s permission for it. If you won’t agree to grant your co-parent permission to move the child, or if you can’t agree on terms of the move, the judge will rule on the terms of the agreement.
 
In order to get a court order to allow the move, the relocating parent must bear the burden of proof to show that the move would improve both the parent’s and the child’s quality of life, and that the move isn't being done to prevent the child and the non-moving parent from having contact. Things that might constitute an improvement in quality of life include a new, better-paying job, better living conditions, better schools or other improvements.
Both parents must establish the integrity of their respective motives. If the court believes that one parent is threatening to move to “punish” the other parent, or that the parent left behind is objecting purely to cause problems for the custodial parent, or that either parent is acting without the child’s interests in mind, the judge will not be favorable to the party who isn’t acting with good intentions.
In order for the custodial parent to gain permission to move the child out of state, he or she must demonstrate the availability of realistic substitute visitation arrangements between the child and the non-custodial parent left behind. If visitation would be unrealistic or cost-prohibitive, the judge may decide not to grant the custodial parent permission to move out of state.
Ultimately, a move out of state is easiest to accomplish when both parents can reach an agreement. However, it’s possible for one parent to move the child out of state without permission, as long as he or she can get the court to agree. It’s vital to work with a good family law attorney if your ex is threatening to take the child out of state in order to protect your parental rights.

Attorney's Fees and Costs

A recent question was posted to me in a family law forum.  Given that many people ask the same question, I decided to post the question here, along with my answer.

Question: Do I have to pay for my wife's attorney or can the court appoint her a free one?
Question Detail: I served my wife with divorce papers and asked her to meet up with my lawyer so she can straighten everything out for us. She refuses and said that I have to get and pay for her lawyer. She only works part time but and I don't have the money either. I pay all the bills and have two kids. Can't she get a lawyer from the court?

The court in family law cannot appoint an attorney.  You are only entitled to have an attorney in a criminal proceeding.  There is no family law equivalent to a public defender.  However, the each party is entitled to have an attorney if they want and can afford one.  There are several statutes that allow the court to order one side to pay for an attorney for the other side, but the most relevant one to you will be Family Code Section 2030, which states:

" (a) (1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. (2) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward. (b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding"

While there are other statutes that allow for the transfer of funds to pay attorney's fees, this is the most common section used.  Note that you can get an award of fees before you have actually hired an attorney, so use of this section can get you the retainer you need to hire a quality attorney.

Can my child testify in our family law case?

In 2007, a family law case made its way to the California Supreme Court.  That any case would make it is rare, that a family law case would be taken up is even more rare.  The case, Elkins v. Superior Court (2007), had a profound impact on the way family law matters are heard today and who may testify.

The case, which was filed in Contra Costa County, involved a situation which prevailed there at the time.  Due to limited court time, all family law trials were by declaration (writing) only and you were required to anticipate evidentiary issues and address them in your documents, or your evidence would be thrown out.  This happened to the father, who lost his case on a procedural technicality and fought to the highest court in the state.

The Supreme Court ruled that even family law matters have the right to a trial with live witnesses and to refuse to grant that was a denial of due process.  The Court ordered the state to come up with laws that protected the family law case's due process rights.  The Elkins case resulted in many new forms and new laws.  One of the most significant ones was that, under Family Code Section 3042, children ages 14 and over will be given the right to testify unless the court specifically determines that it is not in there best interests to do so.  

Under 3042, any party to the case or any other individual associated with the case may advise the court of the child's desire to testify and the court will allow it.  Whereas previously, children were almost never allowed to testify, now, their wishes can be heard and a strong voice for the best interests of the child will not be silenced.  As with all potential witnesses, care should be given before putting them on the stand, however in high conflict cases where children have suffered abuse, allowing them to be an active participant in the process can help promote healing while also allowing for a proper resolution of the custody case.

Parental Rights

I received the following legal question posted to me recently:

"Question: If a person is incarcerated, does their spouse have the right to get a divorce and take away parenting rights?
Question Detail: My husband's ex wife did this to him and my husband and I want to know if she was legally able to do so."



Often, people come to me asking about terminating parental rights or what their rights are.  They frequently confuse parental rights with custody.  If the above person was incarcerated, his rights likely were not terminated, but rather the mother was granted sole legal and physical custody of the child.

Legal custody is decision making authority, while physical custody refers to where the child lives.  As long as the child is a minor, then these are subject to modification.  The termination of parental rights, on the other hand, is used as a first step towards adoption by another person or persons. 

The other common thing asked is if someone can give up their parental rights to terminate their support obligation.  The general answer is no.  Again, parental rights should only be terminated prior to someone adopting the child, as the State of California believes that the child should have the benefit and financial support of two parents. 

To put it another way, a child is not a car.  You cannot give it up simply because the cost of maintenance as exceeded your expectations. 

Fido and the Famliy Law Case

I just read this article on a legal proceeding in Los Angeles regarding a fight over "ownership" of a dog.  In this case, the parties are not related, but you would be surprised at how often, and with how much vigor, parties in a family law proceeding will fight over who gets to keep the family pets.

While the issue is complex, since pets are not considered by the courts to be anything other than property, the main issue is the emotional attachment that the parties feel towards their pets.  I know for me, my pets aren't property, they are my furry children.  They care when I don't feel well, are happy to see me, and want my attention. 

Because there is no "title" to who owns a pet (usually), the courts have long had difficulty with this issue and there is no easy resolution to the problem.  Needless to say, from a financial standpoint, it is often cheaper to not engage in a protracted legal battle over the family pets.  That said, as with the people in the above article, how much would you spend to keep your loved one with you?

Can I Move Away?

The following is a question posted by a real family law party regarding move away.  My response follows:


Question: Can I legally move 90 miles away if I have joint custody of my son and am the custodial parent?
Question Detail: I must take a job in Orange county and move from San Diego County. I have joint custody of my son and am the custodial parent . Can I move 90 miles away legally? I have offered my ex-husband that I would drive my son to him and/or meet him half way. He refuses.

Response: The answer lies in your current order.  If it says that the child must remain in San Diego County, then you will need to seek a modification of the order in order to move to Orange County.

When seeking the right to move away, the terms of your current order are generally controlling.  Since a move away case can take a significant amount of time, it is advised to pursue the right to move away as soon as you recognize that you will need to move, rather than waiting until the last minute. 

Questions from the Public

From time to time, I receive anonymous questions regarding family law matters through a website I belong to called LawQA.com.  As many of these questions may be of general interest, I thought I would post the questions, along with my response, for your viewing pleasure.  Below are some questions posted by real prospective clients.  My response follow their question.

Question: How much of custody can I get if I hired a lawyer?
Question Detail: I have a 5-year-old son. Been divorce for 5 years. I have 50% physical and 40% decision. His mom left him at 6 month old on the sidewalk of my aunt's house in the car seat and left for a month with out calling. At the time I got 80% but then I got a female lawyer and she made me feel bad and I give his mom 50% custody (worst mistake ever). Now she wants me to pay child support. I have my son Thursday through Sunday, and even some Tuesdays, which is her time. Most of the time he is with me even on her days because she has other things to do. But now I'm getting married and his mother wants to put me in child support. She won't buy him any clothes, shoes or even make him food, his 14-year-old brother is the one who cooks for him not her. He started in school so I got him a tutor that I pay for and he goes on my time but when she keeps him she won't take him and now he may do kindergarten again. She doesn't help him with his homework or have a set schedule for him. I gave her my house when we divorced but he doesn't even have his room set for his age, it is still the same way as I left it 5 years ago. I have my own house and he as his own room with me. I help him with reading and school and he is under a set schedule at my home, but i feel she is being careless with my son. Can i get sole custody if I hired a lawyer or at least get the 80% I had last year?

Response: No attorney can guarantee you any percentage of time or decision making authority, however an experienced family law attorney can assist you with obtaining the best order for your child.

Question: As a father, can I keep my son until I file for split custody?
Question Detail: I have my son for the first time in five months. There is no custody court order for my son. The mother just allowed me visitation for the first time in five months.

Response: You should seek orders from the court on an emergency basis, rather than just keeping your son until orders are sought on a regular motion.  While each parent is entitled to the child in the absence of custodial orders, keeping your child from the other parent is as bad as what happened to you. 
 

Car Seats-It's The Law

Recently, a Los Angeles County case was ruled on by the California Supreme Court.  The case stems from a situation where the parents of several children suffered a terrible, and likely preventable tragedy, resulting in the death of an 18 month old girl.  The parents did not have a child safety seat when  transporting the baby (the baby was sitting in the lap of her Aunt) and their car was hit by another driver who ran a stop sign.

Current law provides that all children under age 8 or are shorter than 4'9" must be secured in a safety seat in the back seat of the car.  This law, which took effect on January 1, 2012, is a significant change from the prior law, which only required a booster seat if the child was under 6 years of age or less than 60 pounds.  Under either law, this child was not properly seated in the vehicle (lap sitting is never permitted).  What is worse for these parents is that, on top of losing their baby, Los Angeles County Child Protective Services (CPS)removed the other two children from the parents' care due to their demonstrated neglect.  The California Supreme Court upheld the LA County CPS's action in removing the children,

Justice Marvin R. Baxter, writing for the court (who ruled unanmously for LA County CPS), said "when a parent's or guardian's negligence has led to the tragedy of a child's death, the dependency court should have the power to intervene… even if the parent's lethal carelessness cannot necessarily be characterized as sufficiently 'gross,' reckless, or culpable to be labeled 'criminal.' "

This should be a warning to all parents.  The law is clear and unambiguous.  If your child is under age 8, then they need to be in a car seat in the back seat of the car, unless they are taller than 4'9" (in which case they may be restrained by only a seat belt but must still be in the back seat).  Failure to follow this law can result in death or removal of your child from your car.  The risk just isn't worth it. 

Appellate Court Ruling on DOMA

Today, the Appellate Court for the 1st Circuit (Massachusetts) ruled that certain provisions of the federal Defense of Marriage Act (DOMA) violated the US Constitution's Equal Protection Clause ().  While this is clearly a victory for advocates of marriage equality, it is not the absolute victory that they might have hoped for.  Essentially, this court, led by two conservatives and one moderate, ruled that where a state made same sex marriages legal, such as in Massachusetts, it is a violation of the Equal Protection Clause of the US Constitution to deny those couples federal rights, such as the right to file joint tax returns (and the financial benefit that confers) and social security survivor benefits.

Because the appellate ruling was specifically limited to situations where a state has made same sex marriage legal (currently six states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, plus Washington DC), this ruling has narrow applicability.  It does, however, set a president for the possible overturning of the law in its entirety.

Until the US Supreme Court ultimately rules on this case (which is likely to be appealed by foes of marriage equality) and the recent 9th Circuit ruling on California's Prop 8, the law in this area will continue to be foggy but groups on both sides of this issue continue to hope that the ultimate ruling with favor their position.

Court Budget Crisis and You

Due to unprecedented budget cuts as a result of the economic downturn, the various courts have been forced to adopt plans to reduce expenses.  In Ventura County, the court has decided to close the East County Courthouse for Family Law services, effective June 25, 2012.  As a result, all cases previously assigned to Simi Valley will be reassigned to Ventura as Commissioner Johnson (currently assigned to Simi Valley) will return to the Ventura Courthouse.

Additionally, the court has released notice that they are discontinuing case review conferences and the case plan designation program.  These two items were implemented several years ago to help cases (frequently self-represented parties) move their case toward a resolution by ensuring that the next step is undertaken by the parties.

During this period of staffing and budget cuts, the services of an experienced family law attorney can be essential in keeping your case moving forward and not falling through the cracks. 

Why should I have a will or trust?

Estate planning is not something that most people think about when they are young.  After all, young people don't often have children, perhaps aren't married, and have not yet accumulated much in the way of assets.  But as people age, they often continue to put off this important action.

In California, you are not required by law to prepare a will or trust to determine how to dispose of your property.  The California Probate Code, Section 240, provides a mechanism for distribution of your assets in the absence of an estate planning document.  However, the distribution set forth in the Probate code may not be what you want to have happen with your property.  In order to avoid the court for making decisions for you, a will or trust is needed, as this document (or documents) instructs the court (or in the case of a trust, instructs the trustee) to distribute your assets according to your specific direction.

No matter your age, it is important to take control of your assets and determine your own estate plan.  Leaving this to a court can often bring about unwanted results.

Can A Married Person file for Bankruptcy without their spouse?

A recent potential client contacted me and asked this very question.  The short answer is yes, you aren't required to file a joint petition if you are married.  One spouse can file while the other remain outside the proceedings.  However, doing so may not be in the parties' best interests.

By filing without your spouse, any community debts will be discharged as to the filing spouse (if they qualify) but they will remain enforceable against the non-filing spouse.  As a result, creditors can and often do come after the non-filing spouse to collect the debt owed.

Additionally, the income and expenses used to determine if you qualify for filing can be effected.  If you are considering filing for bankruptcy without your spouse, it is strongly suggested that you contact an experience bankruptcy attorney regarding these and other issues before you file.

Bankruptcy Means Test

Without a doubt, the first question I am usually asked by a potential client is: do I qualify to file for bankruptcy.  Now, there are several different chapters under which a bankruptcy can be filed, but we will be focusing on the most common filing chapter; a chapter 7 (liquidation).

Bankruptcy laws are found under title 11 of the United States Code.  This section is further divided up into chapters and it is under these chapters that people determine what type of bankruptcy filing they desire to pursue.  Chapter 7 refers to liquidation of debts, meaning that all discharged debt will become non-collectable upon the discharge of the debtor from bankruptcy.

To determine whether or not a person qualifies to file for bankruptcy under chapter 7, the courts use a means test, based upon the median income of each state, to determine if a person has sufficient funds to repay the debt they have acquired.  If a person is below the median income threshold, then they automatically qualify and no further analysis is needed.  If the person's income is above the median income for their state, then a further analysis as to income versus debt is needed.  Not everyone qualifies for a chapter 7 filing, as a result.

Effective May 1, 2012, the courts have adjusted the median income for chapter 7 filers.  The median income has gone up in California, meaning that more people will now qualify to file, if they need to do so.  The increase ranges from $125.00 per month to $197.00 per month, depending upon the number of household members.  If you have been thinking about filing but are unsure if you qualify, now may be the time to pursue a bankruptcy filing.

Change of School

With summer rapidly approaching, many children will be finishing instruction at the school they now attend and "promoting" to another school, be it middle school, junior high, high school or college.  Most parents are well aware of the upcoming change, but give little thought to how it impacts their custody and visitation schedule.  In fact, the courts are almost always clogged in August and September with last minute motions for a change of the order to accommodate their vision for the schedule when their child changes school.

Now not every case requires a change.  If both parents live a short distance from each other, and the new school isn't far away, then keeping the status quo may be appropriate.  However, when two parents live in different school districts or in the same district but the area of different schools, problems often arise as to where the child will go.

Courts will give deference to who has historically made that decision and who is the primary physical custody parent, however that is not always the case.  As with all custody orders, the best interests of the child are the paramount concern of the court.  If you think that your case will require a modification of custody and visitation, now is the time to file your motion, so as to avoid a last minute rush which may anger your judge. 

The Duty to Disclose

Civil litigation is often described as a treasure hunt, in which you get the right information only if you ask the right questions.  Family law is different in that each party has an affirmative duty to provide information to the other side at the earliest stages of the case.  Family Code Section 2103 provides that "in order to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest, each party to a proceeding for dissolution of the marriage or legal separation of the parties shall serve on the other party a preliminary declaration of disclosure under Section 2104 and a final declaration of disclosure under Section 2105, unless service of the final declaration of disclosure is waived pursuant to Section 2105 or 2110, and shall file proof of service of each with the court."

Often, the parties see this step as a formality and give little attention to the accurate preparation of the two documents which comprise the Declarations of Disclosure: the Income and Expense Declaration and the Schedule of Assets and Debts.  Failure to accurately and thoroughly disclose the assets and the debts of the community, even if the other side knows about them, can have serious penalties for the disclosing party.  Penalties can include attorney's fees, sanctions (paid to the court) or an unequal division of property.  

The time you spend on accurately and properly gathering and disclosing the assets and debts that are known to each party can help settle a case, avoid attorney's fees and costs, and prevent you from losing your property.  It is always time well spent.  

Custody and Visitation

To many people, the term Custody and Visitation seems repetitive.  To the average family law client, custody means when they have the child in their care and visitation is when the child sees the other parent.  In the family law courts,  however, the term custody has a different meaning and, in fact, is broken up into two parts: legal custody and physical custody.

Legal custody is defined as decision making authority relating to the child's health, safety, education, and welfare.  The parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).

Physical custody is defined as where the children live.  Again, parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).

Visitation refers to both parents and is the timeshare between the parties.

In California, it is the goal of the legislature to establish orders which generally provide for close and continuous contact between both parents and the minor children.  As a result, the default custody position for the courts is joint legal and physical custody with a timeshare as close to equal as possible.  Realistically, may factors can move the needle in favor of one parent, resulting in a deviation from an equal timeshare and joint custody.  Those factors can include (but aren't limited to): domestic violence issues, criminal charges, and alcohol and drug abuse issues.

When establishing order for custody and visitation, the needs of the minor children should be strongly considered in light of the legislative intent.  By keeping that in mind, the parties can often settle this issue without court intervention.  The best custody orders are the ones the parties themselves make, rather than judicially imposed orders which leave one or both sides feeling like they got taken to the cleaners.