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5 Tips to Finding the Right San Diego Divorce Lawyer

California marriages end in divorce too frequently. While California ranks among the lower across many states, the rates are still rather high. According to Statista, the state overall has approximately a 5.7 per 1,000 rate of marriages. Recent reports issued by U. S. News indicate approximately 6.5 percent of all California marriages will end in divorce. One of the most important things you can do when you learn your partner wishes to end your marriage is make sure you have a qualified divorce attorney. Here are some of the best steps you can take to find the attorney who is right for your needs. 

Step One: Talk to Family and Friends 

Nearly all of us know someone who has been through the divorce process. Each of us may turn to family and friends when we are looking for recommendations for other services and divorce attorneys are no exception.  When discussing recommendations with friends or family, find someone who has a situation like your own. This can help you make a better-informed decision. If you have children and you are talking to only those who are childless, the attorney may not be the right person for your needs.  The more similar someone else's situation is to your own, the more likely you are to find the right attorney to meet your needs. This is just one way to determine if the attorney is the right one to help you move forward and resolve your problems. 

Step Two: Check Your Local Bar Association 

The State Bar of California has a listing of all family law attorneys in the state. Once you have decided which attorney may be able to best help you, review their credentials on this website and learn how long they have been in practice. You can also reference the San Diego County Bar Association and learn more about the attorney you are researching. 

Step Three: Evaluate Your Needs 

Before you begin contacting an attorney, it is a good idea to understand your specific needs. Some examples of how people's needs may vary include: 
  • No Material Differences on Property Division — while California is a community property state, either partner may have had property coming into the marriage, one partner may be shielding assets, or other situations may develop which would result in your needing a more aggressive attorney. However, if you and your spouse agree on most issues pertaining to property division, you may merely need an attorney who will help you draft a proper agreement. 
  • No Dispute on Child Custody Matters — if you and your spouse agree on who will have physical custody of your child or children, your attorney can help you draft a proper parenting plan. However, if you and your spouse are disputing child custody, you need an attorney who is willing to advocate on your behalf. 
  • Other Determining Factors — if you have a high-value marital estate, your spouse is in the military, or either you or your spouse own a business, your needs are very different than someone who merely needs an attorney to help them draft a separation agreement and custody agreement. Make sure you are looking at your divorce situation as a whole and not as different parts, because it will make a difference when hiring a divorce lawyer
These are only a couple of situations where the family law attorney you select to handle your divorce could have an impact on your future. Choose the lawyer who will represent you carefully based on your specific needs. 

Step Four: Do Your Own Research 

Regardless of how stellar the information you receive from families and friends, it is imperative you do your own research into an attorney. There are several options for doing this including reviewing the attorney's website, checking professional reviews, and searching professional referral sites. These sites often provide information which you will not find anyplace else and can help narrow your search for the right divorce attorney down to a small number of options. 

Step Five: Contact Local Resources 

Oftentimes, you can find information through local support groups for newly divorced parents or other groups which can help you determine a lawyer's local reputation. Do not hesitate to take advantage of these resources as they will help you make a better decision. Remember, if you are in the midst of a contentious divorce, you want to make sure the lawyer you hire is going to be the best person to represent your needs and help you overcome the challenges you will be facing.  Once you have completed these five steps and narrowed your choices down to a few names, you will then have the information you need to make an informed decision. However, your search should not end there.   One of the most important things to remember is you need to be able to talk to your lawyer about all aspects of your pending divorce, which means you need to feel comfortable sharing potentially uncomfortable information. The best way to accomplish this is to have a face-to-face meeting with the lawyer before you hire them.   Nearly all attorneys will offer potential clients a free consultation. By scheduling a free consultation, you can either discuss your case by telephone or in person with an attorney and determine your level of comfort. Remember, every person's needs are different — you may need an attorney who will be available by phone when you have questions, others may wish to have an attorney who will just take charge of their case and let them know what they have to do.   If you are considering filing for divorce, or your spouse has recently informed you they plan to file for divorce, you need someone who will serve as a strong advocate for your interests. At The Law Offices of Steven M. Bishop, Attorney at Law, we have had more than four decades of experience handling a range of divorce cases including military cases, high net worth cases, and cases where there are broad disputes between spouses. As a specialist in family law, as certified by the California Board of Legal Specialization we are committed to helping each client resolve their family law matters. Contact The Law Offices of Steven M. Bishop today at (619) 299-9780 or fill out our online contact form to schedule your free consultation. 

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Will I Need A QDRO For My California Divorce?

Divorces can be messy. The process can be challenging for couples to navigate, even when most issues can be resolved amicably. This is one reason why couples often turn to an experienced family law attorney to help them draw up agreements, resolve unsettled issues, and review the issues which a couple has resolved between them. One type of asset which is challenging to navigate during the property division phase of a divorce is retirement accounts. One partner or both may have these types of accounts, and in some cases, some of these assets were in the account prior to the marriage. Since California is a community property state, the state holds the belief that any assets accumulated during the marriage are to be divided evenly between the two parties. In the event one or both spouses have retirement accounts to be divided, a qualified domestic relations order (QDRO) is required.

What is a QDRO?

Qualified domestic relations orders are used to divide assets in specific retirement plans. There are some plans, such as individual retirement accounts (IRA), deferred annuities, and some government pension plans which do not require these types of court orders. QDROs provide specific directions to the custodian of the accounts on what amount is to be sent to the receiving spouse, as well as information on how they are to be transmitted. These orders are used for the following types of accounts:
  • Corporate Profit-Sharing and Stock Ownership Plans
  • Corporate and Business Defined Pension Plans (DPP)
  • Money Purchase Plans
Some of these plans are more complicated to divide up than others — for example, DPPs are more challenging to value than others. However, when you are working with an attorney, they can help you navigate this process and make sure the court has complete information on each of these retirement plans.

Is a QDRO the Only Way to Divide Retirement Assets?

In a word — no. You do have other options to deal with assets which your spouse is entitled to following your divorce. One option is to offer to provide non-retirement assets to your spouse in the amount of their interest in the retirement plan. This is commonly called a buy-out. To complete the buy-out however, you will have to reach an agreement with your spouse regarding the value of your plans, and the court will have to approve the agreement and include the terms of the agreement in your Dissolution Judgment. Anyone who is going through the divorce process and has certain retirement accounts should also determine ahead of time whether the receiving spouse may need to join the plan in order to receive any portion of that plan. Your family law attorney can help you understand the differences and which accounts may require the spouse to join the plan.

How is The Amount of the Retirement Account My Spouse is Entitled to Established?

Typically, the assets of a couple are divided equally in California. When there are retirement accounts, there are complicated formulas which must be taken into consideration. For example, any funds which were part of your plan prior to your marriage are considered sole property. For most plans, the value of the plan on a specific date is used to determine how much your spouse is entitled to as part of the divorce. Other plans, such as defined benefit plans and annuities are more complicated. That is because they are based on a specific value, versus a specific investment amount to arrive at a value. Speak with your attorney about finding out how these plans are to be used.

What Steps are Taken After a QDRO is Issued?

The first thing you must understand is most retirement plan administrators have certain requirements for QDROs. Your attorney can help draft the QDRO to ensure it meets the needs of the plan. Once there is certainty the document meets the needs of the plan administrator, the court will have to approve the document and give their approval to the plan which has been agreed upon for the division of retirement assets. Once the court approval has been received, the plan administrator is provided with the court-certified copy of the QDRO. The plan administrator will then take the necessary steps to transfer the portion of the retirement accounts which are being divided. Keep in mind, withdrawing these funds rather than leaving them invested in a retirement account will likely mean paying a tax penalty so it is important you understand the tax implications of any withdrawals from funds received under the QDRO.

How Would a Buyout Work Versus a QDRO?

If you and your spouse agree to use the buy-out option, the process is different. First, the funds would not be drawn from your retirement plan, instead they would be from other assets. For example, if you had an art collection which was estimated to be valued at $100,000 and your spouse is entitled to half, that is an easy calculation. If the determination is made they would be entitled to $50,000 in assets from your retirement plan, you could agree to turn over the entire art collection to your spouse. Keep in mind, the buy-out still must be approved by both your spouse and by the court. Property division is complicated when both spouses have both property they own together as well as property which is considered their sole property. It is further complicated with both partners having retirement plans which must be divided upon their divorce. Everyone who is working through the complicated process of a divorce should be working with an attorney whom they feel comfortable with and one who understands the complexities involved in resolving issues surrounding QDROs and pension benefits. If you need assistance resolving any aspect of your marriage dissolution or drafting a QDRO to divide retirement assets, contact Attorney Bishop to schedule a consultation. Call our office at (619) 724-4148 or complete our online Contact Form.  

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How to Make Changes to Existing Child & Spousal Support Orders in California

There may come a time when the party paying child or spousal support, or the party receiving either payment may have an interest in modifying the existing order. While this is not impossible to do, the process can be complicated — particularly when the other party is opposed to having it changed. The most cost-effective method for making these changes is to have the two parties agree to the change, have the proper documents drawn up by a qualified family law attorney and submit them to the court for approval. When an agreement is impossible to reach, the necessity of working with a modification attorney in California becomes critical.

Reasons for Modifications in Child Support Payments

When an existing court order is in place for child support payments in California, there must be a change in circumstances after the original order was put in place. In most cases, the party paying child support will be expected to continue making payments until such time the child is no longer a full-time student at age 18 or 19. However, the parents may request a modification if certain changes occur in their financial status. Some changes may include:
  • Change in income — when one of the parents has had an increase or a decrease in their income, this may provide the basis for a modification of child support in California.
  • Time changes — in some cases, the change is in the amount of time a parent is spending with a child. If one parent is spending more or less time with the child than was originally agreed to, there may be a reason to modify the current order.
  • Child's needs — one of the primary reasons a person receiving child support payments may request a change is the child's needs have changed. This could be health, education, or other changes which occurred after the initial child support order was put into place.
  • Disability or retirement — when one parent becomes disabled or retires, there may be a need to change the amount they are paying for child support.
There are other times when a change may be warranted, you should speak with an experienced child support attorney regarding any change in your overall financial circumstances to determine whether the reason would be acceptable to the courts.

Reasons for Modifications in Spousal Support

Spousal support, more commonly known as alimony, modifications are handled in much the same way as a child support order. In some cases, the court may have ordered these payments to start and end on specific dates. Even when this is the case, there may come a time when one party requests a change in spousal support. Some common reasons a change may be requested include:
  • Income changes — when the income for either party involved in the order changes, the court may hear a motion to change the order. This may occur due to a change in jobs, a decrease or increase in self-employment income, or a job loss.
  • Cohabitation — if the receiving spouse remarries or begins living with a new partner, the paying partner may request a modification for spousal support payments. Remember, if the partner is living with a new partner, there must be definitive documentation supporting this argument, the court will not simply accept your word this is occurring.
  • Tax changes — in some instances, a change in one party's tax status may impact child support payment requirements. Speak with your spousal support lawyer regarding those changes before deciding how to move forward.

Forms Required for Child Support Changes

As with anything which is handled by the court, there are forms which will have to be filled out to make changes to child support payments. The forms which must be filled out include: You can determine which financial form must be used by reviewing another form which is available, (Form DV-570). Finally, you can the Information Sheet for Request for Order (Form FL-300-INFO) to learn how to fill out Form FL-300. These forms can be confusing, and mistakes can cause time delays. Whether the parents agree on a change, or you are trying to make a modification request on your own, a family law lawyer should review these documents before they are filed with the courts.

Forms Required for Spousal Support Changes

While some forms for modification of alimony in California are the same as those used for modifications of child support, there are some which are different. For spousal support changes these forms are used:
  • Spousal or Partner Support Declaration Attachment (Form FL-157) – this form is optional but may help you prove the reasons why a modification is needed
  • Declaration(Form MC-030) or an Attached Declaration (Form MC-031) would be used if more information is necessary to support your request
The same rule applies as the rules for child support modification. Any mistakes can cost you time, and additional money. Taking the time to have these forms reviewed by a family law attorney should be your first step.

Once Request For Modifications Are Filed

Until you have received an authorization from the court approving the changes to spousal support or child support, there should be no change to the amounts you are paying. This is important because you can be held in contempt if you begin paying less. Another important thing you should be aware of: Even if you believe the change may only be necessary for a short time, you should request a modification immediately. Remember, the court will only approve changes once they have seen the agreements you have reached, or there has been a hearing to approve the changes. Changes will only go into effect when the court issues a new order approving the modification. If you are considering requesting a modification of child support or alimony, The Law Offices of Steven M. Bishop, CFLS can help you with the process. Call our office at (619) 299-9780 or send us an email to arrange your free telephone consultation with our experienced attorney.    

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Five Tips For Helping Children Cope With Divorce

While California is among the states with some of the lowest divorce rates, according to US News & World Report, this does not mean divorce does not occur. Regardless of the circumstances of your divorce, it is not easy for anyone. Getting to the "new normal" is challenging — for you, your ex-spouse, and for your children. Divorce is traumatic for everyone involved, but often less traumatic on the adults involved than the children. Children often blame themselves for the problems their parents are having, and this can often lead to their acting out. Parents can prepare their children for life after divorce by ensuring they have the tools to help them cope. Here are some useful tips for making sure your children are not further traumatized following a divorce.

Tip One: Keep Lines of Communication Open

First and foremost, it is important you communicate with your children. Parents should also be willing to maintain their own lines of communication. Remember, regardless of any friction between the parents, you will both have to deal with ensuring your children grow up safe, happy, and healthy. While the children do not need to know the details of your divorce, or the cause, they do need to know the divorce was not their fault, they are loved by both parents, and prepare them for the changes which will be made in their lives.

Tip Two: Avoid Being Too Rigid

While you want your children to maintain a schedule, make sure you are not being overly rigid. Remember, circumstances change — for your children, your former spouse, and in your life as well. Sometimes visitation schedules may need to be altered — avoid getting overly emotional about those changes, so your child does not feel they are being put in the middle of choosing between two parents. Additionally, it is important to remember your child may be acting out in the months following a divorce. Try to accommodate their mood changes — this is particularly important in the teen and pre-teen years — without approving of the behavior. Reassuring your children that both parents are there for them is important and sometimes this may result in you needing to make changes to your schedule to ensure they can visit with their other parent, or grandparents.

Tip Three: Avoid Shutting People Out of Your Life

Divorces tend to "divide" families. In addition to being estranged from your spouse, your circle of friends may narrow, your family circle may narrow as your in-laws avoid visiting with you. Make sure you have a strong support system — for you and your children. Utilize those resources which are available to help you cope with what your child is feeling. Your child's other parent, school guidance counselors, teachers, coaches, and the children's grandparents should be kept informed about any challenges your child may be facing. This will help them interact with your child, be on the lookout for any signs they may be facing emotional distress and may also help your child cope with the changes they are facing. Being open with friends, family, and those who interact with your children on a regular basis can be helpful for you — more importantly, it is very helpful for your children.

Tip Four: Encourage Your Child to Share Emotions Good and Bad

While you do not want to encourage bad behavior, you will want to encourage your child to let you know how they are feeling about what is going on around them. Let your child know the emotions they are feeling — anger, fear, and confusion — are normal given the situation. Make sure they understand they are free to discuss how they are feeling with you or with your ex-spouse. The more a child feels secure in sharing how they are feeling, the more likely they are to turn to you — rather than take out their frustration in other ways. Encourage them to stay engaged with family members, with your ex-spouse, and with their friends. The healthier an outlet you offer them for "blowing off steam" the more likely they are to be able to cope with the changes which are going on in their lives.

Tip Five: Avoid Confrontation with Former Spouse in Front of Children

During the divorce process, there were probably many contentious issues including child support, spousal support, and parenting plans. Differences in parenting styles can confuse children and make it harder for them to adjust. Make sure if you and your spouse have a difference of opinion you handle it privately, preferably where the disagreement is not happening in front of the children. Likewise, it is important your children see you and your spouse agreeing on things as well. Wherever there are areas of agreement, it is always a good idea to sit down and include your children in discussions which pertain to them. This type of interaction allows your children to see despite your differences, both parents remain committed to doing what is in their best interest.

When Circumstances Change and You Need Help

In some instances, families learn after a divorce which includes a custody and support agreement that there need to be changes. Changes to parenting plans may need to be made to accommodate schedule changes which can impact children or parents. If you and your former spouse cannot agree on these changes, we can help. The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation has been dealing with family law issues for more than four decades. Remember, the wellbeing of your child is of the utmost importance and the more stable you can keep the relationship between your children, yourself, and your former spouse, the better for everyone involved.

A Family Law Specialist Can Help

Attorney Steven M. Bishop is a certified specialist in Family Law by the California Board of Legal Specialization and can help you and your family through this difficult time. Your children must remain a priority for both you and your spouse. We can provide you with assistance with many of the issues you may be facing including parenting schedules, support matters, and more. Contact us today at (619) 299-9780 and schedule a consultation.  

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Can Alimony be Modified in California?

When a final divorce decree is issued, one of the spouses may be awarded alimony. Too many times, those who are paying alimony, and those who are receiving alimony believe the amount awarded is the "final" amount and that amount is paid until the judgment is released. However, California courts do recognize in some cases, once an order has been established, there may be valid reasons to request the order be modified.

What Circumstances Can Lead to Modification of Alimony?

The first thing to understand is an alimony, or spousal support order as it is known, may only be modified if specific conditions are met. Spousal support payments are not ordered randomly — there are specific criteria which must be met before a judge will include spousal support in a divorce settlement. The specific criteria are included in California Family Code Section 4320. Some of the circumstances which would allow you to make changes in spousal support include:
  • Income Changes — if the spouse receiving alimony has an in income of greater than 10 percent, there may be grounds for requesting a modification. The paying spouse who has the same situation may also request an alimony modification.
  • Living Situation — if the spouse receiving alimony begins cohabitation, there may be grounds to request a modification of alimony orders. Additionally, if the paying spouse has had a change such as a new dependent, they may also request a modification of support.
  • Failure to Exert Effort to Become Self-Sufficient — one of the characteristics of spousal support is it is to serve as a bridge unless there are circumstances which make it impossible for the receiving spouse to gain employment. In these cases, it may be necessary to request the court issue a "Gavron" warning which stemmed from Marriage of Gavron, 203 Cal. App. 3d 705, 711-712 (Cal. App. 2d Dist. 1988). This case was brought when a spouse who was receiving a substantial monthly alimony payment refused to seek employment over an extended period of time. This option is available when the court has not ordered permanent alimony payments.
There may be other circumstances which could warrant a modification of alimony, you should speak with a skilled family law attorney if need to either request an increase in alimony payments, or you are seeking a decrease in payments.

Alimony Modification Process in California

Assuming the court has retained the jurisdiction necessary to hear a case for modification of alimony, the person requesting the modification will be required to fill out the following forms:
  • Spousal or Partner Support Declaration Attachment(Form FL-157 ) – this form is optional but may help you prove the reasons why a modification is needed
  • Declaration(Form MC-030 ) or an Attached Declaration (Form MC-031 ) would be used if more information is necessary to support your request
While it may be possible for you to fill out these forms on your own, the challenge is making sure the arguments you are putting forth will sway the judge to find in your favor. This is one reason why it is helpful to work with a certified family law attorney in all matters which require court intervention.

Things to Avoid When Requesting a Modification of Alimony in California

While a modification of an alimony order may be made at any time, it is important to make sure you have the legal grounds to do so. There are other things you should be aware of when filing for a modification of spousal support including:
  • You should continue making payments if you are the person paying. This is important because a failure to make payments could result in your being held in contempt of court.
  • You should file a modification request as soon as you have identified the legal conditions have been met. Should an order for modification be issued, it will not be retroactive, the new order will only be in effect once the court has ordered or approved the change.
  • Do not modify your payments based on a verbal agreement between the two involved parties. Even if you have agreed to a change, it must be changed within the court system.
It is always important to protect yourself during the modification process, so you do not face additional legal challenges associated with non-payment or partial payments of alimony. Seek legal guidance if you have any questions regarding payments of alimony.

Experience Matters When Dealing with Alimony Modifications

When you are requesting a modification of alimony, it is important to have the proper documentation and proof needed to justify the request. While it is always possible to have the alimony order modified in California, if you do not have the legal basis to do so, it will be denied. Spousal support payments are typically designed to ensure a person can maintain their standard of living following the dissolution of a marriage. However, when the paying spouse is facing challenges making payments, or the receiving spouse is unable to make ends meet, there may be grounds for changing the payments. You will not know if your situation warrants a modification until you speak with an experienced California alimony modification attorney. Hiring an experienced family law firm can make a difference between having your request approved or denied. That is because an experienced attorney can help you determine if you have the legal grounds needed to request a modification. If we determine you have the legal basis for a modification, we will help you gather the documentation, fill out the required court forms so they are accurate and represent your interests in court.  To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-304-0418 or an email. We provide services to individuals throughout the San Diego County area and help them reach a resolution on all types of family law matters. Contact The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation at (619) 299-9780 if you have questions about your current alimony. Let us help you with requesting a modification.  

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Types of Property that are Eligible for Division in a Divorce

California is a community property state. This means during a divorce, the assets of the marital estate are divided equally, as are the debts. However, what is not as clear is what is considered part of the marital estate. Under California Family Code 750 Section 3 the definition of the marital estate is more clearly defined. However, this does not mean that all property is considered community property.

Property and Debt Acquired During a Marriage

In general, when any asset is acquired during a marriage it is considered to be community property. This includes:
  • Wages and Benefits
  • Lottery Winnings
  • Business Ownership
  • Real Estate
  • Bank Accounts
  • Retirement Accounts
These assets would be divisible equally between the spouses at the time of a divorce in California.

Understanding Sole Property in California

Separate (or sole) property may also be owned by a spouse in a California marriage. There is a narrow standard for this category of property. To be considered sole property, the spouse must show the property was gifted to them, was acquired from an inheritance, or was part of a personal injury compensation settlement. Other sole property may be identified as agreed upon by the partners. Generally, this means the partners have either a post-nuptial or a prenuptial agreement in place. Property which either party owned prior to the marriage may also be considered sole property under California Code § 770. There is one other category of sole property which couples should be aware of. Any debt or asset acquired following the parties physically separating from each other during the marriage would also be considered sole property.

Commingled Marital Property

Spouses often do not understand community property statutes and inadvertently wind-up using funds which might otherwise be considered sole property for property which becomes part of the marital estate. Some examples of this include:
  • Pension and Retirement Accounts — any funds which are in a pension or retirement account at the start of the marriage are considered sole property. However, if you withdraw funds from these accounts during your marriage and deposit the proceeds in a jointly held bank account, they are then considered community property. The difference in value between the accounts at the time of the marriage, and upon the dissolution is also considered community property. Funds in this case which are owed to the non-contributing spouse would be divided through a Qualified Domestic Relations Order (QDRO).
  • Real Estate Liquidations — if one spouse owned a piece of property coming into the marriage and subsequently sells the property the proceeds may be deposited into an account in only their name and remain sole property. However, if the proceeds are used as a down payment on another property, the new property becomes part of the marital estate if the payments on the property from funds either partner earns, then the equity in the property is considered community property.
As you can see, community property rules are confusing which is why a couple who is in the process of a divorce must seek competent legal assistance. Debt and property, including business which is part of the marital estate must be carefully reviewed.

Post Nuptial and Prenuptial Agreements and Community Property

Another factor which must be considered when dividing property in a community property state is what agreements exist between the spouses. In some cases, there are agreements which were entered into legally which bind the parties. Unless there are instances of fraud or coercion, these agreements will further dictate the division of property. Some examples include:
  • Debt incurred by one spouse — either spouse may elect to purchase a vehicle or other large-ticket item which requires a loan. In these cases, the spouses may have an agreement in which one party agrees to be legally liable for the loan. These agreements, unless they are forced upon the spouse are legal and would eliminate one spouse's liability.
  • Assets acquired by one spouse — when a spouse buys a business, invests in artwork, or buys an antique, they may have a reason for holding it as sole property. If the spouses have a legal document specifying that for legal purposes the property is designated as sole property, the court will typically uphold these agreements.
Prenups, and post-nuptial agreements can often cause complications in divorce proceedings. Make sure your attorney is informed of any agreements which exist which may have an impact on the overall value of your marital estate.

Always Seek Legal Help When Dealing with Property of a Marriage

Most people are not aware of how the courts view marital property under California law. Individuals should take steps to ensure their sole property does not become commingled during their marriage to protect their own interests. It is also important to remember that if you should acquire property during a period when you are separated from your spouse you should make a note of the date of your separation to ensure you are credited with being the sole owner.

Student Loans in Community Property States

Remember, there may be different rules which apply to student loans. When a spouse takes out a student loan during a marriage, the rules may be applied differently. If the spouse co-signed on the loan, they are liable for repayment of the loan. If the loan was used and as a result the student's income improved the family's financial picture, then both spouses may be liable for repayment. However, if the spouse who used the loan defaulted on the loan and the other spouse was not a cosigner, they may not have any liability. If one spouse entered the marriage with outstanding student debt, that debt does not become part of the marital estate and remains the sole liability of the spouse who took out the loan. Talk to your attorney about any student loans which were taken out during your marriage, so you understand when you may be responsible for part of the loan.

Want to Know More About Community Property?

To learn more about your specific options regarding community property and your divorce, call our San Diego office at 619-304-0418 or send us an email.  We will arrange a free phone consultation with Attorney Bishop, and he can help you understand sole and community property and how it may apply to you.  

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Is My Spouse Hiding Assets During Our Divorce?

Marital property — this is one of the most misunderstood factors in a California divorce.  California is a community property state — this means property and debt is generally equally divided between each spouse. According to the courts in California, when a couple divorces, marital property is considered equally owned by both spouses. Since each spouse or partner owns one-half of the property, they also are responsible for one half of the debt. There are complicated rules that pertain to sole owned and community property during a divorce which make it imperative for you to hire an attorney who understands California law.

Marital Property Versus Sole Property in California

There are two categories of assets and debts which a couple may have at the time of their divorce. Marital assets are those assets which are accumulated during the marriage. Marital debt is the debt accumulated during the marriage. However, there is also property and debt which may be classified as sole property and debt including:
  • Inheritances — any inheritance a person may receive while married is classified as a sole asset. This means upon the dissolution of a marriage; the property is not divisible between the two partners.
  • Property owned at time of marriage — if a person owns property at the beginning of the marriage, this property may not be included in community property. There are exceptions to this: For example if a partner owns a property or business at the time of the marriage and no additional investments in the property or business were made during the marriage from community property funds, they may remain classified as sole property. However, if there were investments during the marriage, the value of the property at the time of the marriage, less the current value may be classified as community property.
  • Proceeds from Personal Injury Cases — if one partner settles a personal injury lawsuit, the value of the lawsuit may be classified as a sole asset.
  • Property Defined in Pre or Post Nuptial Agreements — when a couple enters into a post or prenuptial agreement they often classify certain property as sole owned. This may be presented to the court as proof of one party owning the property in cases where property division is being considered.
  • Debts Which the Spouse had When Entering a Marriage — student loans, automobile loans, etc. which a spouse had prior to being married may be classified as sole debt.
You should speak with a California property division attorney during your divorce to make sure you understand the complexities involved in community property law.

Financial Disclosures During a Divorce Proceeding

Both parties will be required to submit individual financial disclosures during their divorce proceedings. These disclosures cover all assets including life insurance policies, IRA, and other retirement accounts, as well as bank and brokerage accounts. The court requires the person submitting such a disclosure to attest as to its truthfulness and completeness. Still, there may be times when one spouse attempts to diminish the value of the assets of the marriage. There are several ways this may be done including:
  • Liquidating bank or brokerage accounts — withdrawing funds from accounts as a means of hiding the value of the account is a common tactic that is used to minimize the value of the marital estate.
  • Investing in Cryptocurrencies — today with increasing availability of cryptocurrency, one spouse may make a sudden investment in these currencies. There is no statement which is issued by the company holding this asset. This may be done in advance of considering a divorce as a means of shielding the spouse from disclosing the asset.
  • Business Investments — in advance of filing for divorce, one partner may withdraw funds from a bank account or other investment account and put the funds into a business which has been designated as sole property. This is a method used to minimize the value of the marital assets.
  • Other Investments — rare books, artwork, or other unexpected investments in antiques may be used as a way of hiding assets during a divorce proceeding.
  • Unexplained Loans — your spouse may make unexpected loans to friends and family as a method of hiding the true cash value of your marital estate.
If you suspect your spouse may be hiding assets, it is important you advise your attorney of this fact immediately. There are ways to ensure there is full disclosure including looking back at prior account balances. Always bear in mind these methods are often utilized well in advance of a divorce filing — you may stop seeing certain bank or brokerage statements, notice your spouse is getting less in bonus money or commissions, or has taken a sudden interest in unregulated investments.

Hiding Assets or Shielding is Illegal

When a couple files for divorce, each is entitled to an even division of property as well as obligated to repay debt which is part of their marital estate. Anything less than full disclosure is illegal, and the courts may hold the responsible party in contempt of court, or the offending party may face other penalties imposed by the court. You should never settle for less than the full value of your marital estate because your partner is attempting to hide assets. When you are involved in a divorce where a significant portion of your marital estate is deemed community property, one spouse may be attempting to shield some of these assets. You need an attorney who will thoroughly investigate any claims of hidden assets to ensure you get the portion of the marital estate you are entitled to under California law. Be certain to tell your lawyer about any assets you believe may have been wrongfully liquidated or transferred to others in the months leading up to your divorce. Remember, the higher the value of your marital estate, the more likely your spouse is to attempt to shield assets.

We Can Help With High Value Divorces and Hidden Assets

To speak to us about your property division case, please call the San Diego offices of Attorney Stephen Bishop at 619-304-0418 or send us an email to arrange a free phone consultation. We can help ensure your spouse is making a full disclosure of all assets which should be part of your marital estate to make sure you get your rightful share of your marital estate.

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Child Support Considerations for Same-Sex Couples

Child support and custody is always an issue when a couple is in the process of getting a divorce. Seldom do both partners agree on which parent should have custody, and there is seldom agreement about support matters. In California, child support is calculated using a formula which includes the income of both parents including wages, disability payments, and unemployment benefits. Mandatory fees like retirement contributions and union dues are deducted from these amounts. Other deductions such as child support payments from other children, spousal support payments, and job-related expenses may also be deducted. While this may seem crystal clear in most divorces, there is often a question as to how these impact same-sex couples.

Same Sex Couples and Child Support in California

There are often questions regarding support payments and custody when it comes to same-sex couples. One parent generally is not biologically related to the child or children in question. However, same-sex couples in California have the same rights and the same financial obligations to their children as their non-same-sex peers. This is largely in part due to a California Supreme Court ruling in which the court determined the children of a same-sex couple have the right to the care and attention of both parents, even when only one parent is biologically tied to the child. This type of ruling means both parents, regardless of sex, have a financial obligation to the child until they reach the age of 18, or until the child reaches 19 if they are still full-time students.

How Child Support is Calculated in Same Sex Divorces

The courts have an obligation to ensure both parents are treated the same financially for purposes of establishing child support payments. As such, there is an elaborate calculation which determines how much support each parent is able to provide. The elements of this calculation are:
  • Total Income — the income of both parents will be calculated, and a formula will be used to determine their gross income. Mandatory deductions such as taxes, union dues and work-related expenses will be taken into consideration.
  • Health Care/Insurance Expenses — medical care or insurance premiums will also be taken into consideration. If a child has medical issues which are not covered by insurance, this will also be included in the formula.
  • Educational and Daycare Expenses — the costs associated with the child's education and care while a parent works may also be included in the formula for determining support.
  • Prior Obligations for Support – if either parent is obligated to pay child support for other children this is also taken into consideration when determining how much support should be paid by one parent.
  • Amount of Time with Child — in general, child support payments are made to the custodial parent. In some cases, especially those involving joint custody, there will simply be a division of expenses incurred for each parent in raising the child.
  • Other Factors — the court may review other facts which are relevant including any special needs of the child, the parent's physical condition and age, etc.
The general formula for child support payments looks like this: CS = K (HN - (H%) (TN))
  • CS means child support
  • K means combined income of both parents
  • HN means net disposable income (high net)
  • H% means time each parent spends with child
  • TN means total net monthly disposable income of parents
You should speak with your divorce attorney or the attorney dealing with support disputes about how much child support you may be entitled to receive or may be required to pay. These numbers may also be impacted by other factors per California Family Code Section 4057(a).

Modifying Support Orders in California

There are certain factors which may result in a change being requested in a California child support order. Keep in mind, the decision to request modification must be based on factors which directly impact the person paying support or the parent receiving support. Some valid reasons for requesting a modification of a child support order include:
  • Changes in Income — either parent who has an income change of more than 10 percent higher or lower may request a modification for support. This includes a parent who has lost their job, or a promotion.
  • Changes in Expenses — expenses for children may change in regard to their needs for daycare, education, or health care. If there is a steep increase or decrease in these expenses, it may be worthwhile looking at a support modification.
  • Custodial or Visitation Changes — when the amount of time a child spends with one parent significantly changes, there may be a need to change the support order.
  • Additional Children — if one parent becomes a parent as a result of another relationship it may be necessary to request a modification.
  • Factors Changing from Original Order — when there are changes in any of the original factors used to set child support payments, a parent may request a modification.
It is important to remember a child support modification is not automatic. Requesting a modification of a child support order should be handled by a skilled family law attorney after a review of the facts.

Non-Payment of Court-Ordered Support

Under California laws, non-payment of child support is a serious offense. Those who fail to make payments as ordered in a final judgment can face serious fines, and potentially may face jail time. A contempt of court charge may be filed against any parent failing to make timely support payments. In addition to contempt charges, a non-paying parent may also face other consequences. Some of these include suspension of driving rights, denying a passport renewal, liens against their homes, and wage garnishments. When you are entitled to receive child support payments, we can help you hold a non-paying parent accountable. Parents who are facing any challenges regarding child support need to know what options are available to them. Contact Steven M. Bishop,  a specialist in family law, as certified by the California Board of Legal Specialization at 619-304-0418 or send an email to arrange your free telephone consultation.  

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Ways Business Debt Can Affect Your California Divorce

Divorces are messy. California is a community property state which can further complicate an already complicated situation. In community property states, in general, any assets or debts accumulated during the marriage are divided evenly between the two parties with the exception of property which was acquired prior to the marriage or acquired by one party as the result of an inheritance, or a personal injury lawsuit settlement.

Business Finances Can Complicate Divorces

When there is a business involved, the entire situation becomes far more difficult: Not only are there assets which must be dealt with, but there are also business loans and other debts to deal with. This is a common problem in which the already complicated high-asset divorce becomes even more complex The two areas in which business debt can impact a divorce include:
  • Business Loans — you may have taken a loan against your business assets to repair a roof, expand your home, or for other purposes which you believe enhance the value of a marital asset. However, this may not result in your spouse being responsible for half the debt.
  • Salary from Business — even if a portion of your salary from business is being used to repay the loan you took out for personal reasons, you may not use this reduced amount for consideration for spousal or child support obligations.
Both of these situations would result in your having higher debt following a divorce. This could result in a devastating financial picture as you move forward.

Avoiding Business Debt Problems During a Divorce

We already understand having a business can further complicate your divorce. However, there are some steps you can take to avoid being saddled with debt which should rightfully be divided between you and your spouse.  There are some steps you can take to ensure your business debt is equitably distributed during a divorce.

Avoid Commingling Personal and Business Funds

Your business funds and family funds should remain separated at all times. The only funds which should be placed in your personal accounts from a business account is your salary. In the event you borrow money using your business assets or your business you need to carefully document the use of funds. If you are borrowing money for personal reasons, make sure you carefully document the following:
  • How much money was borrowed from your business
  • What the purpose of borrowing funds was
  • Any amounts which were repaid from personal funds

Use of Business Funds Once Divorce Proceedings Begin

Once your divorce proceedings have started, you should avoid borrowing business funds to pay for personal expenses. Doing so could jeopardize the court's rulings on how much income you may have to acknowledge for purposes of calculating child and spousal support payments. You should continue to draw your normal salary from your business during your divorce proceedings. The more caution you use with business funds, the less likely your expenditures are to be questioned during these proceedings.

Consult with the Appropriate Professionals

Just like you hire a skilled family law attorney to assist you with a divorce, you should also consult with a financial advisor and a tax professional when dealing with business assets and debt. In many cases, it will require the expertise of a forensic accountant to assist in determining the value of your business. Make sure you provide them with any documentation which is requested so they may set a true value for your business.

High Value Divorce Complications

Even when you and your spouse agree you can no longer share your lives together, there can be serious disagreements over how assets and liabilities are divided during a divorce. If your business is considered "sole ownership" – meaning your spouse may have no right to the assets of the business, this does not make it less complicated if you have borrowed money against your business for personal reasons. A jointly owned business, and a solely owned business are treated in different manners for the purposes of divorce in California. In order for a business to be considered sole ownership, one of the following conditions must be met:
  • Ownership prior to marriage
  • Whether the business was inherited from another family member
  • Whether you and your spouse had a prenuptial or post-nuptial agreement
None of these factors may prevent your spouse from having a claim against the business. Some of the items which will be reviewed as part of your divorce settlement will include whether any of your family's funds were used to grow or invest in the business, whether your spouse provided any labor support during your marriage, and whether money taken from family funds was repaid during your marriage.

Avoid Taking Risks in a High Value Divorce

Anytime there is a business involved in a divorce proceeding, the ability to have a "simple" divorce becomes impossible. You want to work with an attorney who understands what is at risk and maintain as much control as possible over your business once your divorce is finalized. You also want to avoid having business debt that could cripple you financially as you start on a new path. Working with a skilled divorce attorney who has experience handling high value divorces with a business as an asset can help you overcome some of the challenges you will be facing. If you are in doubt regarding any financial decisions you are making during your divorce proceedings, speak with your attorney before doing anything. The courts will not look favorably upon you if there is an attempt to use personal funds for business reasons. Keep your business finances and your personal finances completely separate and make sure you do not liquidate any assets which may be considered joint property. Contact Attorney Steven M. Bishop to schedule a consultation today. Attorney Bishop is a Certified Specialist in Family Law, he can help you from the early planning stages to the final disposition. Do not take unnecessary risks that could put you in legal jeopardy. To schedule a consultation regarding your divorce, contact Attorney Bishop at (619) 304-0418 or complete our online  contact form.  

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How Can I Get the Costs of Private School Included in Child Support Payments?

Parents always want what's best for their children. This is an admirable sentiment, but it's subject to change when a family is going through a dissolution or a legal separation. That sounds a bit extreme, but it sometimes happens when one parent insists that the other parent pay their child's private school costs. California's family codes don't automatically include private school expenses as a factor in support calculations. As a parent, you have two ways to have those costs included in your child support payments.

  • Establish a private school payment agreement with your spouse.
  • Present evidence seeking a court order in favor of your private school payment request.
Parents simplify the process when they agree that one or both parents should share their child's private school costs. In some situations, financial concerns become a cooperation stumbling block, but you still have options. Even if an estranged spouse doesn't willingly agree to the added expenses, the court has the discretion to designate tuition as a reasonable child support expense. Of course, you must present evidence to substantiate your request.

A Certified Specialist in Family Law

Attorney Steven M. Bishop has helped many families resolve their child support issues before they become insurmountable. As a Certified Specialist in Family Law, Attorney Bishop has helped couples negotiate support arrangements for private schooling and other additional costs. When necessary, he prepares and presents your supporting evidence in Family Court. Attorney Bishop provides compassionate guidance and assistance as he works to resolve your most pressing issues.

How Much Does Private School Cost in California?

California has a history of litigation over child support and private school tuition. Parents rarely object to their child receiving a better quality education. Disagreements usually focus on cost. Tuition is the primary reason why joint or non-custodial parents rebel against paying for private school. Of course, it's in the best interests of the child, but it's usually a high-dollar child support add-on. The website Private School Review documents 2020/21 school year tuition costs throughout the state. They receive regular updates from schools that confirm their tuition costs. The current average annual cost for private school education in California is $14,718 per year. Tuition varies widely depending on the school and the grade.
  • Preschool: Ranges from a high of $47,000 to a low of $1,011
  • Elementary school: Average cost per year, $11,569 (Highest, $61,000, Lowest, $1,200)
  • High School: Average cost per year, $20,000 (Highest, $66,900, Lowest, $1,200)

What Does Child Support Pay For California?

California Family Law establishes specific child support goals under Statewide Uniform Guideline, §4050 - 4076. The provisions establish child support requirements that meet a child's need for housing, food, clothing, extracurricular activities, and other expenses. The guidelines also ensure that children receive financial support that's consistent with the state's high standard of living and high child-raising costs. The law presumes that the parent with the most physical responsibility devotes a substantial amount of their resources to raising their child. The guidelines include several additional child support standards.
  • A parent's primary obligation is to support their children "...according to the parent's circumstances and station in life."
  • Both parents are "mutually responsible" for support.
  • Support considers each parent's income and responsibility for the child.
  • Each parent should pay according to his/her ability.
  • The child's interests are the state's top priority.
  • Children should share both parents' standard of living.
  • Families should rely on private financial resources to meet their child's needs.
Under §4062, family courts have discretion in issuing orders that may include these and other additional items.
  • Child care costs while a parent works or enters a training or educational program to develop new employment skills
  • Reasonable uninsured health care costs
  • Costs for educational or special needs
  • Visitation travel expenses
This discretion opens the door for a parent to receive child support that includes private school tuition costs. As with many court cases, the party requesting consideration has the burden of proving the need.

Presenting a Case for Private School Support

Many parents feel that private school is a choice, not a requirement. If you can't convince your estranged spouse through sincere negotiation, you must persuade the court to find in your favor. You have several ways to plead your case. Your child's school administrators and teachers should be able to provide evidence to help you substantiate your claims.
  • Educational Stability: If your child is already in private school, transferring him or her to public school could have an adverse impact on their education. When a child switches schools, they lose touch with their friends and teachers. Considering the variation in learning standards and class offerings, a transfer could erase a child's educational and social progress.
  • Religious or Cultural Expectations: When your children attend a religious or culture-based school, it reinforces principles, traditions, and social behaviors they won't learn in other schools. It can also be a requirement of certain religions.
  • Special or Gifted Learning Needs: In a traditional public school, your gifted or special-needs child won't usually get the attention they require based on their learning capacity.
  • Your Active Involvement: As a parent, you interact with your child's teachers. You take on special duties, and you attend school functions. You are actively involved in your child's education. A move to a new school would alter that dynamic for both you and your child.
  • Family Tradition: If your older children had the benefit of attending a private school, a change in household status shouldn't change that tradition. It could affect your younger child's overall education as well as college prospects and future career possibilities.
  • Financial Means: When the other parent has the financial capability to pay private school costs, private school tuition won't cause undue economic strain. This complies with child support guidelines which mandate that "Children should share in the standard of living of both parents."
When you present a strong case, the court should accept your view that private school is a genuine obligation to your child. As both parents must share in the child's support, the court may issue an order for one or both spouses to share the additional costs.

Contact The Law Offices of Steven M. Bishop

If private schooling provides the best education for your child, you might be able to work out an agreement with your spouse. If you can't agree, the court will consider your evidence and make a decision. Either way, you should have a legal professional working on your behalf. Attorney Steven M. Bishop is a Certified Specialist in Family Law. He's helped clients resolve child support issues during negotiations and in court. To schedule a consultation, call our office at (619) 299-9780 or complete our Contact Form.

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