Category Archives: Family Law Misc

Support Problems? Subpoena Bank Records

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.


Who Gets To Claim Our Child for Tax Purposes?

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.

  1. The parents:
    1. Are divorced or legally separated under a decree of divorce or separate maintenance,
    2. Are separated under a written separation agreement, or
    3. Lived apart at all times during the last 6 months of the year, whether or not they are or were married.
  2. The child received over half of his or her support for the year from the parents.
  3. The child is in the custody of one or both parents for more than half of the year.
  4. Either of the following applies.
    1. 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.
    2. 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

Financial Tips To Prepare For Divorce

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.

Stepparent Adoptions

While the adoption process itself is complicated, having an understanding of the basic process may help.  This blog is intended to give a general overview of the process.  Generally, the adult wishing to adopt a child must be at least 10 years older than the minor intended to be adopted.  Only a minor’s biological parent or parents, a licensed adoption agency, or the California Department of Social Services may legally authorize adoptions.

For stepparent adoptions, two separate cases must be opened.  One is the termination of parental rights.  If the biological parent whose rights are being terminated agrees, things go much smoother than if the whereabouts are unknown.  The parent wishing to terminate the rights of the other must prove that they have made a diligent attempt to locate that parent.  After that, they must file a petition to notify by publication, and then post notice in a newspaper for four weeks.

The process starts with a petition for adoption.  Often, several hearings are held to determine the status of the case, and then to finalize the adoption.  An investigation, including a criminal background check of both parents (even when only one is adopting), will be done by the Probate department before the adoption will be approved.  All members of the family will participate in an interview.  Paperwork is required to be provided that concern all members of the family, and is quite extensive.  Unless the parent’s rights have been terminated by a separate proceeding, they must be notified that the process is taking place.

The process of adoption is best handled by an attorney.  Often the termination of parental rights and the adoption process take place during the same period, and can be quite confusing.

Probate Rules Regarding Small Estates

California provides special rules for small estates to avoid the expense and time of a regular probate procedure.  As of January 1, 2012, eligibility limits have been raised from $100,000 to $150,000 for the value of all the property that would otherwise be subject to probate.  Real estate of small value, up to $50,000, can be transferred to the beneficiaries by filing an affidavit with the Court.   Surviving spouses can also collect up to $15,000 in salary owed to the deceased spouse.

What Are The Requirements For Filing A Petition For Dissolution In California?

In order to file a Petition for dissolution in California, one of the parties must live in California for a minimum of 6 months.  In order to file in a particular county, one of the parties must reside in that county for a minimum of 3 months.  These requirements are important, since a court must have jurisdiction over the parties.  Why is that important?  Fairness!  It wouldn’t be fair for a party to be required to travel to Northern California if both parties and all witnesses and other evidence are in Orange County.  There is also a filing fee that must be paid at the time the Petition is filed, or you must file a form to request the court to waive the fees.

What Does A “No Fault” Divorce Mean?

California is  considered to be a “no fault” state.  This means that the court does not look to place blame on either party for the breakup of the marriage. In practical terms, it means that infidelity has little relevance to a dissolution case. To bring the issue up in court will waste the court’s time and your money.

The main reason infidelity would become an issue in a divorce case is if the spouse has spent community funds to wine and dine someone they are having an extra-marital affair with.  This requires documentation.

Infidelity is also not a valid excuse for denying a parent access to the children of the parties.  If you find yourself too emotional to make a decision outside of the anger and frustration, an attorney will help guide you through until you are in a better place.


When filing a Request For Order (RFO), be aware of Civil Code of Procedure §1005 requirements.  This code requires that the motion be filed and served (you can serve prior to obtaining a conformed copy stamp) at least 16 COURT days before the hearing.  The papers you serve must be the same as what you file with the court (meaning you must include any attachments filed).  All papers opposing a motion, such as a Response, require at least 9 COURT days prior to the hearing.  A reply to the Response must be served and filed at least 5 COURT days prior to the hearing.

BEWARE:  The above notice requirements apply only to personal service of the papers.  A post-judgment filing for issues of custody, visitation or child support require an address verification (form FL-334 – see Family Code §215). See below for time to be added, depending on method of service.  Also notice that the above requirements are in Court days, and the additional periods are counted in Calendar days.  Court days mean that no weekends or holidays count as a day of notice, and you do not include the date served (the next day counts as day one) or the day of the hearing.

OTHER THAN PERSONAL SERVICE – If you mail the RFO, you must add 5 CALENDAR days to the notice requirement if mailed within the state of California.  Different rules apply for service outside of California.  If you serve by facsimile, express mail, or other method providing overnight delivery, you would need to add 2 CALENDAR days to the notice period.