Tax Refunds as Income

Generally, tax refunds are not considered additional income for the purposes of support. However, In re Marriage of Morton involved a long term marriage and analysis of whether or not a tax refund could be factored into the father’s annual net disposable income for the purposes of child support.

FACTUAL BACKGROUND OF THE DISSOLUTION

The parties were married for more than 21 years and had one child together. The husband owned a business and estimated his taxes every year. At the time that the first hearing for child support was held, the amount of the actual taxes for the business had not been calculated. Since the husband made estimated tax payments, his income was reduced by those estimates.

FAMILY LAW TRIAL PROCEEDINGS

The wife argued that the husband’s income tax refunds from the S corporation should be included in the amount of income available for support. The family court excluded his income tax refund as income and the wife appealed.

APPEAL OF THE ORDER

The Court of Appeal disagreed with the family court. It held that tax refunds should be counted towards income when they are estimated tax payments, there was an over payment of those taxes, and they were excluded as income.

This was an unusual circumstance in that the refund was not included in the original calculation of child support, because the actual income could not be determined until after the year had ended and taxes had been filed.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Uncategorized | Tagged | Leave a comment

Transmutations and Interspousal Transfer Grant Deeds

If one spouse transfers property to the other spouse during marriage, the transfer must be in writing as required in In re Marriage of Kushesh.

FACTUAL BACKGROUND OF THE DISSOLUTION

In Kushesh the parties were only married for a year. During the year, the husband signed an interspousal transfer grant deed. The grant deed transferred the property that was purchased during marriage to the wife.

FAMILY LAW TRIAL PROCEEDINGS

The family law judge concluded that the house was community property, because the interspousal transfer grant deed did not have the requisite wording to change the character of the property. The wife appealed.

APPEAL OF THE ORDER

The court of appeal reversed the decision. It held that the interspousal transfer grant deed contained the requisite language. It reasoned that deeds are used to transfer property. The deed in this case used the word “grant” which is a word used to convey real property. In addition, the deed stated that the property was granted to the wife as her separate property.

DO YOU NEED HELP WITH ISSUES RELATED TO CHARACTERIZATION OF PROPERTY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as property characterization or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Transmutation | Leave a comment

Severance Pay After Ostler & Smith Orders

The definition of income and when support should be paid can become convoluted. The basic issue in In Re Marriage of Samson was whether severance pay was payable in one month or over a year.

FACTUAL BACKGROUND OF THE MODIFICATION OF SUPPORT

The parties were divorced. In their marital agreement they agreed that any compensation in excess of $25,000 per month to the ex-husband would require a payment of 35 percent to the ex-wife. The ex-husband was laid off from his job. He received severance pay from his employer. The severance pay consisted of a year’s salary, a lump sum in lieu of commission, a healthcare component, and a master retirement plan component. After the ex-husband received his net pay, he filed a motion to ask the family court to treat his severance pay as income over a year rather than income in excess of $25,000 for one month.

FAMILY LAW PROCEEDINGS

The ex-wife argued that the lump sum payment should be payable as a lump sum payment in one month. She argued that the ex-husband could not retroactively modify support, and his filing of the request would result in a retroactive application of support. The family law judge agreed with the ex-wife and ordered the ex-husband to pay support based upon the agreement made by the parties. The ex-husband appealed.

APPEAL OF THE MODIFICATION ORDER

The appellate court reversed. It reasoned that this is an Ostler & Smith type order, and Ostler & Smith orders are based on bonus income that fluctuates and is not guaranteed. It held that at the time of entering into the agreement, neither party knew that the ex-husband would receive a lump-sum payment. Therefore, the severance pay would not be subject to an Ostler & Smith type order

DO YOU NEED HELP WITH ISSUES RELATED TO MODIFICATION OF SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as modification of support or any other divorce matter such as legal separation, annulment, custody, spousal support, child support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Spousal Support | Leave a comment

Ostler/Smith: Support Orders Based on Bonus Income

In 1990, the court in In re Marriage of Ostler & Smith created a new interpretation of the law that applies today.

FACTUAL BACKGROUND OF THE DISSOLUTION

In Ostler & Smith, the husband received a large bonus every year as part of his income. However, the bonus was not guaranteed and depended on the performance of the company.

FAMILY LAW DIVORCE PROCEEDINGS

The husband did not want the court to base either spousal support or child support on his bonus income. However, the family court awarded a base amount of child support and spousal support and additional support based on a percentage of his bonus income.

APPEAL OF THE FAMILY LAW JUDGE’S ORDER

The husband appealed and the appellate court upheld the order. It stated that income includes bonus income and an award of support based upon a percentage of bonus income that is actually received is proper.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as  support based on and Ostler/Smith award or any other divorce matter such as legal separation, annulment, custody, spousal support, child support, and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.

Posted in Uncategorized | Tagged , | Leave a comment

In Re Marriage of Moore

In re Marriage of Moore defined the amount the community gains when it pays down the mortgage of a home owned by one spouse.

FACTUAL BACKGROUND OF THE DISSOLUTION

The wife in Moore purchase a home before marriage. During the marriage, the parties made mortgage payments.

FAMILY LAW TRIAL PROCEEDINGS

The husband argued that he was entitled to a reimbursement of all payments made towards the home including interest, taxes, and insurance. The trial court only included the amount of the reduction of the principal. The husband appealed.

APPEAL OF THE DIVORCE JUDGMENT

The Supreme Court agreed with the trial court. It held that the down payment and the loan proceeds must be considered separate property. The community is only credited with the amount that it paid down the principal during the loan. Therefore payments towards interest, taxes, and insurance were properly excluded.

DO YOU NEED HELP WITH ISSUES RELATED TO DIVISION OF COMMUNITY PROPERTY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as property division or any other divorce matter such as legal separation, annulment, custody, spousal support and/or child support, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Community Property, Separate Property | Leave a comment

Stock Options and Child Support

The family court determined in In re Marriage of Macilwaine when a stock option is considered “available” as income for child support purposes.

FACTUAL BACKGROUND OF THE DISSOLUTION

The parties were married for fourteen years and had four children together. A large part of the father’s compensation consisted of stock options. He asked that the stock options be valued at the time of their sale rather than at the time they could be sold so that he could maximize his profits.

FAMILY LAW TRIAL PROCEEDINGS

The father was a high income earner, but most of his income consisted of stock options. The stock options vested, but he was not able to sell them without prior approval from the management company. The father argued that until the stock options were sold, they should not be counted as income for the purposes of child support. The family law judge agreed and decided that the exercise and sale of the stock options would determine when they would be used to calculate child support. Therefore the father could maximize his profits. The mother appealed the court’s decision.

APPEAL OF THE FAMILY COURT ORDER

The appellate court overturned the family court’s decision. It reasoned that the focus of child support is on the current needs of the children. If the time of sale was the deciding factor, parents may not sell their options. Children would reach the age of 18 without the proper support. In addition, the court is not required to maximize profits for either parent. Once there are no legal restrictions on the ability to sell stock options, the options must be counted as income for the purposes of child support.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Child Support | Tagged | Leave a comment

Special Immigrant Status and Participation by Parents

The California Supreme Court in Bianka M. v. The Superior Court of Los Angeles County discussed whether joinder of a non-citizen parent to a SIJS case is necessary when the court would not have jurisdiction over the non-citizen parent. If joinder is required, it would prevent minor children from remaining in the United States.

FACTUAL BACKGROUND OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) HEARING

Bianca M. was born in Honduras. Bianca’s mother lived in the United States and her father lived in Honduras. It was alleged in this case that the father abandoned the child in Honduras before she was born. The father was provided notice of the proceeding, but he did not appear in this case.

SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS

The trial court would not make a finding of SIJS without the personal jurisdiction over the father. The family law judge stated that it was appropriate to join the father because an order would affect the father’s custody rights. The action was dismissed.

APPEAL OF THE SIJS ORDER IN THE CALIFORNIA SUPREME COURT

The California Supreme Court disagreed with the trial court and stated that as long as the absent parent received adequate notice, joinder was not required. Adequate notice must comply with the requirements for service with first-class mail with acknowledgment of receipt. If the court cannot join an individual, the court must consider whether or not the suit may proceed in the person’s absence. In this case, the issues could be resolved without the father’s participation. Even though custody would affect father’s rights, father’s participation was not required as long as he was given notice.

DO YOU NEED HELP WITH ISSUES TO ESTABLISH SPECIAL IMMIGRANT STATUS?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as special immigrant status or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Uncategorized | Tagged , | Leave a comment

Domestic Violence and Custody

The family court in Jaime G. v. H.L. awarded custody to the father after he was found to have perpetrated domestic violence against the mother.

FACTUAL BACKGROUND OF THE CUSTODY DISPUTE

The parents in this case were never married. The father had custody of the parties’ minor child before the proceedings were initiated. After the father filed a petition for custody, the mother requested a restraining order to be issued against the father for domestic violence towards her.

CUSTODY PROCEEDINGS

The court ultimately found that the father committed domestic violence against the mother and issued a 24 month restraining order against the father. The family law judge, however, awarded the parents joint legal and physical custody. The mother appealed stating that the law prohibits the judge from awarding custody to a parent who has abused the other parent unless the court considers the necessary factors.

APPEAL OF THE CUSTODY ORDER

The appellate court agreed with the mother. It stated that although Family Code section 3044 allows a parent who has perpetrated domestic violence to have custody, the court must consider seven factors before it awards custody to that parent. The court must review the seven factors and expressly state the reasons based on the seven factors as to why the court awarded custody to a person who has abused the other parent.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD CUSTODY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child custody or any other divorce matter such as legal separation, annulment, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Abuse, Restraining Order | Leave a comment

Privileged Communications in Divorce

L.G. v. M.B. is not a divorce case, but a civil action that arose out of a divorce proceeding. The case discusses anti-SLAPP motions, torts, and civil procedure.

FACTUAL BACKGROUND OF THE CIVIL ACTION

The ex-wife, who is also the appellant in this case, filed a restraining order against her ex-husband. The ex-wife’s declaration to support the restraining order contained allegations against a third party, the “Respondent.” The ex-wife alleged that the Respondent participated in the violence and manipulation of the ex-husband and that Respondent obtained an abortion, she was a home wrecker, and she took action on behalf of the ex- husband. The ex-wife succeeded in obtaining a restraining order against the ex-husband and also filed a restraining order against the Respondent.

CIVIL PROCEEDINGS

The restraining order against the Respondent was settled. However, after settlement, the Respondent filed a civil action for defamation and invasion of privacy among other things against the ex-wife. The ex-wife asked the court to dismiss the Respondent’s civil action based on the fact that the allegations in the restraining order proceedings were privileged. The trial court denied the motion allowing the case to continue. The ex-wife appealed the order.

APPEAL OF THE DECISION

The court of appeal agreed with the trial court. Civil Procedure section 47 states that allegations made in the course of legal proceedings are privileged. However, subdivision (b)(1) limits the privilege to statements made about parties in a proceeding. When a party makes an allegation against a non-party, it must be verified, without malice, and with probable cause. This provision is often referred to as the divorce proviso exception. By denying the motion, the trial court in effect stated that the Respondent has enough proof to move forward with her legal.

DO YOU NEED HELP IN YOUR DIVORCE?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support, legal separation, annulment, custody, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.

Posted in Uncategorized | Tagged | Leave a comment

Social Security Disability Insurance and Child Support

Y.H. v. M.H. is a question of first impression in respect to whether or not credit for derivative payments of Social Security Disability Insurance should be retroactively applied to child support that has already been paid.

FACTUAL BACKGROUND OF THE SOCIAL SECURITY DISABILITY INSURANCE

The father in this case was injured during his military service. When a person is disabled, he or she may apply for disability payments through the Social Security Administration. If the person qualifies for Social Security Disability Insurance (SSDI) benefits, the recipient’s minor children may qualify for derivative benefits. That is the case in Y.H. v. M.H. The father qualified for SSDI. However, it took the Social Security Administration more than six years to determine eligibility. When the administration decided in favor of the father, it gave the father a lump sum payment for the benefits he should have received for the previous six years. It also gave the custodial mother a lump sum for the derivative benefits of their minor child.

FAMILY LAW TRIAL PROCEEDINGS

Generally, derivative SSDI benefits are credited for child support. When the father received his lump sum payment and the custodial parent received a lump sum payment, the father filed a motion to be reimbursed for his over payment of child support. The mother and the local child support agency opposed the motion stating that it is only reimbursable when there is an amount due and owing on child support. When there is no amount due, the father cannot be reimbursed for any over payment. The trial court agreed with dad saying that the statute allows reimbursement regardless of the status of the payments of child support.

APPEAL OF THE RETROACTIVE APPLICATION OF DERIVATIVE LUMP SUM PAYMENT.

The appellate court upheld the family law judge’s findings. It stated that there is no difference between support already paid and support accruing when it comes to derivative benefits. By allowing reimbursement, the law favors parents who make timely child support payments.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Uncategorized | Tagged | Leave a comment