When parties divorce, often they do not understand that both parties have equal parental rights to the children produced by the marriage until an order has been issued. So, when filing for a divorce, often attorneys will quickly file a Request for Order (RFO), asking the Court to make at temporary orders regarding custody and visitation (Pendente Lite Orders). This avoids a situation where each parent is taking the child from school, daycare, etc….
If the situation presents a danger to the children, a parent can file to request an ex parte order be issued by the Court. Because these orders can involve one parent not being present during that initial hearing, another hearing is set, usually within 21 days. This gives the parent who was not present during the first hearing time to arrange to be present at the next hearing, and possibly retain an attorney in the meantime.
It is very important to attend that initial hearing, regardless of whether you were properly served, as orders can issue from that hearing that could result in you not seeing your child until the next hearing.
Did you know that the depreciation a party claims on their taxes for a real estate investment is supposed to be added back to the gross income for child support calculation purposes? It is not considered a business expenditure by the Courts, and therefore cannot be used to reduce the amount of income available for support calculations. Because support calculations are based on the total amount of income available to each party, depreciation of property would provide one party with more income because the deduction would not be accounted for. This can be useful information for a party whose ex-spouse has substantial real estate investments.
We managed to save a client from financial ruin recently. His ex wife had an old pendente lite support order from 12 years ago that was obtained during a divorce. The couple reconciled for a little more than a year, then decided to finish the divorce. No new orders were issued when the divorce was finalized. That old order provided that my client to pay $5,000 per month!
My client lost his job during the reconciliation, and never paid this amount. Fast forward to this year, now ex tries to register the order here, stating he owes her arrears of $600,000, plus 10% interest every year since 2000 – around $1,000,000!
We were successful in proving that a reconciliation occurred and provided case law to the court that indicated that the order had been vacated because the parties had reconciled. Her motion was denied, and my client is extremely happy!
Family Code 2641 discusses student loans and how they are treated upon divorce. Family Code Section 2641 states: (a) “Community contributions to education or training” as used in this section means payments made with community or quasi-community property for education or training or for the repayment of a loan incurred for education or training, whether the payments were made while the parties were resident in this state or resident outside this state. (b) Subject to the limitations provided in this section, upon dissolution of marriage or legal separation of the parties: (1) The community shall be reimbursed for community contributions to education or training of a party that substantially enhances the earning capacity of the party. The amount reimbursed shall be with interest at the legal rate, accruing from the end of the calendar year in which the contributions were made. (2) A loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division pursuant to this division but shall be assigned for payment by the party. (c) The reimbursement and assignment required by this section shall be reduced or modified to the extent circumstances render such a disposition unjust, including, but not limited to, any of the following: (1) The community has substantially benefited from the education, training, or loan incurred for the education or training of the party. There is a rebuttable presumption, affecting the burden of proof, that the community has not substantially benefited from community contributions to the education or training made less than 10 years before the commencement of the proceeding, and that the community has substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding. (2) The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made. (3) The education or training enables the party receiving the education or training to engage in gainful employment that substantially reduces the need of the party for support that would otherwise be required. (d) Reimbursement for community contributions and assignment of loans pursuant to this section is the exclusive remedy of the community or a party for the education or training and any resulting enhancement of the earning capacity of a party. However, nothing in this subdivision limits consideration of the effect of the education, training, or enhancement, or the amount reimbursed pursuant to this section, on the circumstances of the parties for the purpose of an order for support pursuant to Section 4320. (e) This section is subject to an express written agreement of the parties to the contrary.
A man came into our office asking for our help with a case that had been lingering on for 4.5 years! He just wanted it over with, but the continuances and lack of cooperation had thrown his case into a black hole. Two months after hiring our firm, the case was done – and with the result he wanted! Our office receives great satisfaction helping to move people on from being stuck in the combative role on to a happier life.
This formula applies to situations where community property is used to pay down the principle on a home that was the separate property of one spouse. This can happen when a spouse purchases a home prior to marriage, but still owes on the home, or inherits a property that still has a mortgage that is paid down during the marriage. Such application prevents the spouse who uses community funds to pay for a separate property asset, which would belong only to them upon divorce, from gaining an unfair advantage when dividing the assets during a dissolution. There are no reimbursement rights for the portion of the payments that represent interest, taxes and insurance. The appreciation and reduction of principle are also used in this calculation. The formula is complicated, so if this type of situation applies to your case, you should consult an attorney to make sure this is performed properly.
Support issues can be very troublesome, especially when the supporting parent/ex-spouse has their own business. Hiring Forensic Accountants and Private Investigators may be necessary to ensure that every penny is accounted for, but many cannot afford such expensive investigation tools. One relatively inexpensive alternative can be done if you know which bank the supporting parent/ex-spouse utilizes. A nice, generic explanation of how to execute a business record subpoena is located at:
Understand that local rules may vary, so if you need assistance, contact a local attorney. The bank will send you a bill, if they don’t charge you up front, for copying all records.
Claiming a child as a dependent, therefore an exemption, on your tax return is definitely a consideration with regard to support, and should be settled before guideline support is set. Your family law attorney should be aware of this. Calculating the child support can make a considerable difference, depending upon who claims the child. The tax advantage is calculated by the Dissomaster program. If, for example, if Dad will be paying Mom child support, the DissoMaster program will calculate a monthly amount depending upon who claims the children. If Dad claims the children, he pays more each month. If Mom claims the children, Dad will pay less. In general, if Mom is making no money, it makes little sense for her to take the exemptions.
Failing an agreement between the parties, the IRS will determine who can claim the child, and sets forth a test to determine who will be able to file the deduction and whether an 8332 form will be required. In most cases, because of the residency test (see item 3 under Tests To Be a Qualifying Child in Table 3), a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if the special rule (discussed next) applies.
Special rule for divorced or separated parents (or parents who live apart). A child will be treated as the qualifying child of his or her noncustodial parent if all four of the following statements are true.
- The parents:
- Are divorced or legally separated under a decree of divorce or separate maintenance,
- Are separated under a written separation agreement, or
- Lived apart at all times during the last 6 months of the year, whether or not they are or were married.
- The child received over half of his or her support for the year from the parents.
- The child is in the custody of one or both parents for more than half of the year.
- Either of the following applies.
- The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement that went into effect after 1984 and before 2009 , later.
- A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2011 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child’s support during 2011. See Child support under pre-1985 agreement , later.
Custodial parent and noncustodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent. If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year. A child is treated as living with a parent for a night if the child sleeps:
- At that parent’s home, whether or not the parent is present, or
- In the company of the parent, when the child does not sleep at a parent’s home (for example, the parent and child are on vacation together).
Equal number of nights. If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income.
Need further information? See
My friend, Jeff Landers, wrote a Forbes article giving tips to divorced women. Here is the link:
Word of warning – if you set up your own account, be careful. It may save you from having to set them up later, but any community property funds (your paycheck during the marriage, etc) put in that account runs the risk of having it all deemed community property. If you have an inheritance, I would never recommend putting it in an account that has any portion of community property. Maintaining a separate account from your spouse does not mean it is separate property – it depends upon the source of the funds. Keep in mind that title does not control in family law. If the source was community property, it doesn’t become separate just because one spouse’s name is on that asset. An ounce of prevention is worth a pound of cure.