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Sacramento Family Law Blog

Understanding the "best interests of the child"

For divorcing couples with minor children, the "best interests of the child" is perhaps the most dominant concept in the entire divorce. California law makes child custody, child visitation and child support dependent upon how the best interests of the child will be affected by decisions resolving these issues. A single blog post is inadequate to fully analyze the tests used by California courts, but an overview may be helpful to those considering a divorce.

In essence, the best interests of the child means that all custody, support and visitation decisions are made to accomplish the ultimate goals of fostering and encouraging the child's happiness, physical and emotional security and emotional development.

What happens to pets in a California divorce?

An issue that is often overlooked in the early stages of a California divorce is the disposition of pets. Occasionally, only one spouse wants to keep the family pet, and the issue is easily resolved. In many families, however, both spouses and the children form intense emotional attachments to the family pet. Sometimes, these attachments can be as difficult to resolve as issues of child custody, visitation and property division.

Most states, including California, define pets as property, and the disposition of the animals is handled as if the pet were a sofa or TV set. San Francisco has enacted an ordinance that defines the owner of an animal as its guardian, but very few communities have followed suit. The first option in resolving a dispute about possession of a family pet is not unlike resolving other disputes: the parties can attempt to resolve the issue between themselves, or they can resort to mediation.

Enforcing an order for spousal support in California

Many divorcing couples in California view the entry of the final decree as the end of the anger and frustration that infects many divorce proceedings. Unfortunately, some couples continue to engage in angry and manipulative behavior long after the marriage is officially over. One of the most common actions is the failure of the party charged with paying spousal support to make those payments on time and in the proper amount. Sometimes, the failure to pay support can be justified by the payor spouse's financial situation, but, in others, the failure to pay support reflects nothing more than the decision of the payor spouse to flout the order of the court.

What can be done in such cases? Generally, the party entitled to receive spousal support payments must ask the court for an order enforcing the obligation to pay alimony. If the court agrees that payment of support has been wrongfully withheld, it will enter an order holding the defaulting spouse in contempt of court. The order will ordinarily give the defaulting spouse a specific amount of time to cure any default before facing more serious sanctions, such as a fine or jail time.

Working together through divorce for your child's sake

The period of divorce can be hard on all parties, especially the children. Parents often desire to operate in the best interest of a child, even in the midst of a divorce.

Thankfully, there are ways that parents may be able to decrease the impact of this life-altering occurrence. There are a few things that they should consider to aid in them working together through the divorce process for the sake of the children involved.

New tax law changes taxation of spousal support payments

The tax law signed by President Trump just before Christmas will affect many aspects of American life, including the awarding of alimony in divorce cases. The length and complexity of the law will occupy lawyers and accountants for months as they try to come to grips with the law's meaning and implications. The change in the tax treatment of spousal support is simple to state, but the long term ramifications are not clear.

Under current law, alimony can be deducted by the ex-spouse who pays it, and the receiving spouse must pay income tax on alimony payments. The new law reverses the situation: in any divorce action started after December 31, 2018, the paying ex-spouse can no longer deduct alimony payments, and the receiving ex-spouse must no longer pay taxes on alimony.

Annulling a marriage in California

Some people in Sacramento who want to end their marriage often ask about the annulling the marriage instead of obtaining a divorce. The difference between a divorce and marital nullity (the technically correct term) is relatively straightforward. A divorce is a judicial proceeding that ends a marriage that was valid in all respects. An annulment is a court order that the marriage was never valid. In other words an annulment treats the marriage as though it never happened.

A marriage can be ended by a divorce for almost any reason. An annulment, on the other hand, can only be granted for a specific list of reasons. The list includes incest (parties are close blood relatives), bigamy (the marriage was knowingly entered into by a spouse who was legally married to another person), underage (one or both of the parties was younger than 18 at the time of the marriage), existence of a prior marriage, unsound mind, fraud, force and incapacity (one of the spouses lacked the mental capacity to enter into the marriage).

Using a business appraiser in a California divorce

Many California couples own stock in one or more small businesses. In the event the couple decides to end their marriage, they may need to value the stock they own. If a divorce is not contested as to property division, an appraiser may not be needed. If, however, the spouses disagree on the worth of their business, an appraisal by a qualified business appraiser may be required to establish the value of the business. Some businesses cannot sold without destroying their value, and an appraisal of the value of the business can help the parties or the court divide the marital estate equally.

Business appraisers use three methods to value a business: asset approach, income approach and market approach. The asset approach uses the net value of the business's assets to determine the value of the business. The income approach uses the enterprise's anticipated future income to establish a current value. The market value approach attempts to determine the price that the business would sell for on the open market by comparing it to companies that were actually sold. Each of these methods can be varied depending upon the nature of the business.

How to divide the value of a house in a California divorce

For most divorcing California couples, their house is their biggest asset, and the mortgage is likely to be the largest debt. California's community property law does not give couples much latitude in how to divide the equity in the house, but several property division options are nevertheless available.

Each party should hire an appraiser to value the house. Having two appraisals will help ensure that both parties are fully informed about the value of the house. The net value of the house can be easily determined by subtracting the amount of all mortgage loans from the appraised value; the remainder is the net equity. If the house was purchased while the couple was married, California's community property law dictates that each party has an equal share in the net equity. Another important preliminary decision is whether market conditions make it wise to sell the house immediately or wait until those conditions improve.

Social media and your divorce

Every year, social media becomes increasingly intertwined with the fabric of our daily lives. The Pew Research Center reports that 69 percent of Americans use some form of social media.

Social media can provide many benefits, such as the ability to connect with far-away family and friends. However, the ability to instantly share thoughts, videos and pictures can also present drawbacks, especially for those going through a divorce.

Understanding how "QDROs" work in a California divorce

A Qualified Domestic Relations Order, known as a "QDRO," may be one of the most useful documents in resolving a divorce and giving effect to the court's division of community property. A QDRO, pronounced "quadro," is an order issued by a California court specifying how a retirement plan will be split by the parties to the divorce.

The QDRO has the legal effect of requiring the plan administrator to pay a portion of the retirement benefits to an "alternative payee," who is usually the beneficiary's former spouse. Under the Employee Retirement Income Security Act, commonly known as "ERISA," retirement plan administrators are required to give effect to QDROs by making court-ordered payments to the alternative payee. Court orders that do not comply with ERISA have no legal effect and cannot require a plan administrator to abide by the court's order. QDROs, however, cannot change either the amount or timing of benefits payable under the plan. A single QDRO can deal with several retirement plans.

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