California Grounds for Divorce and Residency Requirements


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Divorce is a legal process that has been left up to each individual state to determine

What requirements they will put in place for people to get divorced within that particular state. If you have made the difficult decision to get divorced, you may be wondering what requirements you will be asked to meet in California. In California, in order to file for divorce you must first meet certain residency requirements. If you successfully meet those requirements or allow enough time to pass to meet those requirements, you may formally request a divorce under California’s “no-fault” divorce laws.

Residency Requirements

Like most states, California requires you to have lived here for a certain period of time before you can ask California courts to grant your request for a divorce. California law requires those seeking to ask the court for a divorce to have lived in California for at least six months prior to filing for a divorce. In addition, California law requires you to have lived in the county you plan on filing for divorce in for at least three months prior to filing for divorce. In cases where you and your spouse live in different counties, perhaps due to legal separation or other circumstances, you may file for divorce in the county in which either of the spouses lives provided that they have lived in that county for at least three months prior to filing for divorce.

If you are initially unable to meet these residency requirements, you could request a legal separation. A legal separation does not require you to meet the minimum residency requirements of a divorce. If you choose this particular path, you could petition the court to make the legal separation a divorce once enough time has gone by for you to meet the residency requirements for a California divorce.

Grounds for Divorce

As mentioned above, California is a “no-fault” divorce state. This means that in a no-fault divorce state, like California, the person filing for divorce doesn’t need to prove any fault on their spouse’s behalf leading up to the request for a divorce. You simply have to meet one of the two grounds for divorce in California, as opposed to a “fault” divorce where you may have to prove specific things – like an affair or the inability to have children – in order to successfully petition for that divorce. California is a completely no-fault divorce state and does not recognize fault divorces.

In California, once you have met the residency requirements you may request a divorce based on either of the following conditions:

  1.     The breakdown of your marriage due to irreconcilable differences; or
  2.     Permanent legal incapacity to make decisions.

California law loosely defines irreconcilable differences as those which are substantial enough to cause a person to choose to not continue the marriage and that the marriage should be dissolved. This loose definition allows people to chose to divorce based on the unique circumstances of their individual relationships. To demonstrate lack of legal capacity to make decisions, a person must establish that the spouse lacked this capacity at the time the petition was filed and continues to lack such capacity. To do so, you may provide medical or psychiatric testimony along with other appropriate evidence that demonstrates the lack of legal capacity to make decisions.

Questions About Divorce

The divorce process has been left up to individual states to establish their own requirements for divorce. The divorce process can be confusing and stressful, not to mention emotionally draining. While some of the laws governing the basics of divorce may seem very straightforward, they are not the only laws that come into play during the divorce process. Many different aspects of California family law must be addressed during the divorce process, and a family law attorney with experience handling California divorce proceedings can work with you to address them throughout the divorce process. Mistakes in divorce proceedings can be costly, and may have significant consequences. If you are contemplating divorce or have questions about the procedure contact JWB Family Law to schedule a consultation. 

 

Getting divorced in San Diego County? Call us today. 619.234.6123

Schedule a free 30 minute consultation with JWB Family Law

What Is the Difference Between Temporary and Permanent Spousal Support?

Spousal support, sometimes referred to as spousal maintenance or by the traditional term alimony, comes in two different forms in California. Spousal support can either be temporary or it can be permanent.

The type of spousal support ordered more or less depends on the point at which it is ordered during divorce proceedings. The basic differences are that temporary spousal support is ordered during a pending divorce and is often calculated by a guideline calculator, much like child support.

On the other hand, permanent spousal support is awarded after a court has ordered the dissolution of a marriage. Either of the two types may be modified after an award has been made.

Temporary Spousal Support

As mentioned, temporary spousal support is awarded during a divorce proceeding, annulment proceeding, or during legal separation. One party makes a request to the court for such spousal support, and the court often uses a guideline calculator to determine what amount – if any – is appropriate for a temporary spousal support order. However, according to the local rules for courts in San Diego County, San Diego County has declined to adopt a specific guideline calculator and will instead use any relevant information in determining the possibility and amount of temporary spousal support. For the purpose of determining orders for temporary spousal support, courts tend to only consider the information required to complete a guideline calculator and determine the requesting party’s need for support and the other party’s ability to pay support.

Permanent Spousal Support

Permanent spousal support is determined and awards at the time a divorce is finalized. An additional difference is that permanent spousal support is not determined by using a guideline calculator. In fact, California courts prohibit the use of such guideline calculators in establishing or recommending permanent spousal support. While factors considered in temporary spousal support decisions are generally limited to one party’s need and the other party’s ability to pay, some factors a judge may use in determining the amount – if any – that may be owed in permanent spousal support include:

  •      Length of the marriage or domestic partnership;
  •      Each person’s needs based on the established standard of living;
  •      Age and health of both people;
  •      Debts and property of both people;
  •      Role each spouse played in the educational or career development of the other spouse;
  •      Whether one spouse stayed out of the workforce to raise children or would need to do so after divorce; and
  •      Tax implications of spousal support.

Permanent spousal support may not be entirely permanent, either. There are several circumstances in which permanent spousal support can be rescinded, including:

  •      Remarriage of the person receiving support;
  •      Death of either the recipient or provider of support;
  •      Expiration of a predetermined length of time from the court; and
  •      Change in the circumstances of one or both of the parties that affects need and/or the ability to pay.

More Information

If you have questions or concerns about spousal support, including whether or not it may apply to you during divorce proceedings or once they are finalized, a family law attorney can explain the various legal aspects involved in determining and awarding such support. Family law attorneys often have guideline calculator templates to help determine what, if any, temporary spousal support is appropriate.

Contact JWB Family Law to schedule a consultation where your questions about spousal support can be answered in a clear, direct way. Divorce is never an easy process, but a family law attorney with experience handling the various, dynamic aspects of divorce can help the process be less unpredictable.

Getting divorced in San Diego County? Call us today. 619.234.6123

Schedule a free 30 minute consultation with JWB Family Law

When Do You Need a Prenuptial Agreement?

A prenuptial agreement, known as a premarital agreement in California, is an agreement between two people intending to marry that helps govern the terms of the marriage as well as potential dissolution of the union. For many years, prenuptial agreements have had a bad reputation as instruments used only to protect the money one spouse has before entering a marriage. However, prenuptial agreements can be useful tools for couples intending to marry because they allow that couple to personally dictate the terms of the marriage and any potential dissolution of the marriage instead of leaving it up to the laws of the state in which the couples have no say govern the marriage and potential dissolution. Prenuptial agreements also offer many additional benefits to couples considering marriage, in addition to helping protect the assets and well-being of each spouse during and after a marriage. Some benefits of prenuptial agreements include:

  •      Personal control over finances
  •      Regulation of property
  •      Improved financial communication
  •      Overall peace of mind.

Personal control over finances

As mentioned, the absence of a prenuptial agreement means that California laws will govern financial considerations should a marriage end in divorce. If couples want to ensure that they are able to have more of a say in how financial decisions are to be made in the face of divorce, then a prenuptial agreement may be an effective tool for couples to use to make sure their voices are heard by the court and that their wishes can be taken into consideration more than if a court only applied state laws. Additionally, it allows couples that may have unique family arrangements during marriage to predetermine or even waive spousal support in the event of divorce.

Regulation of property

In California, most property owned by one spouse before entering into marriage remains the property of that spouse after a marriage has been dissolved. There are some exceptions to this general rule, such as when a spouse invests a significant amount of money in property that was owned by the other spouse prior to marriage. There may also be exceptions for property purchased jointly prior to a marriage. At the same time, California law dictates that most property acquired during a marriage is community property. While there are also exceptions to this general principle, that means that property acquired during marriage will be split evenly between spouses in case of a divorce. A prenuptial agreement can help couples considering marriage iron out property questions prior to the marriage, including dictating how property is to be divided in the case of divorce.

Improved financial communication

Finances are historically one of the reasons why relationships, especially marriages, fail. Prenuptial agreements can act as a tool for couples to begin discussing serious financial concerns prior to the marriage. Doing so helps improve financial communication between spouses, and encourages honesty in such discussions. Discussing how earning money and spending will affect your marriage ahead of time can help prevent conflict down the road.

Peace of mind

Marriage is unpredictable, which is one of the things that makes it so difficult. Generally, people do not enter into a marriage planning on divorcing at some point in the future. However, any number of events could occur during the course of a marriage that make it impractical for the marriage to continue. Knowing how you and your partner will handle a possible divorce ahead of time can put couples at ease, and help avoid prolonging unhappy marriages in the long run. It allows people to rest easy knowing that there will be less of a need for contentious and costly litigation should a marriage end in divorce. When the terms of the dissolution of a marriage have been settles on ahead of time, the divorce process can be much easier.

Should you have a prenuptial agreement?

Nobody is able to tell you the dynamics of your relationship or what the future holds for you. Deciding on whether or not to use a prenuptial agreement is a personal decision between those deciding on whether or not to enter into a marriage. However, while there are certainly limitations to what prenuptial agreements can do, prenuptial agreements are far more beneficial in many situations than their reputation may lead people to believe.

If you are considering using a prenuptial agreement, you should contact a family law attorney with experience in drafting and enforcing prenuptial agreements. Your family law attorney can help you understand how a prenuptial agreement can fit into your marital plans. For more information on prenuptial agreements, or if you have questions about an existing prenuptial agreement contact JWB Family Law to schedule a consultation.
Schedule a free 30 minute consultation with JWB Family Law

How Joint Custody Parents Decide Where to Send Their Child for School or Church

If you and your ex-spouse share joint legal custody of your children, you must decide which school your child will attend. If you and your ex-spouse agree what school your child should attend, you can simply enroll the child in the agreed upon school without any involvement from the court. If you and your ex-spouse cannot agree on which school to enroll your child, you can try mediation to help you decide. In mediation cases where you cannot reach an agreement about the school, you will have to consult with the court.

School

Several cases have wrestled with the issue of what rights are shared by co-parents concerning what school to send children. In Madison v. Davis, the court addressed for the first time the rights of divorced parents when their child enters pre-school. The Madison case involved the rights of co-parents over their pre-school aged child.

The father in the case argued that under Beck v. Beck, a case supporting non-custodial parent’s right to make decisions regarding the child’s well being. Meanwhile, the father in the case argued that under Pascale v. Pascale, the parent of primary residence holds more authority in making decisions regarding the child. The Madison v. Davis ultimately ruled that when pre-school is being used as daycare, the primary residential parent has the initial right to select a pre-school program. The parent, however, must make a “reasonable” choice that factors in considerations like location and cost.

While some parents might think that choosing where a child attends pre-school is a small issue, there is a strong possibility that the court will want to keep your child in the same location as kindergarten to inspire stability.

Church

There are multiple methods used to decide where to send your children to attend religious services. Courts often attempt to balance competing parental concerns about the child’s religious upbringing. While courts must protect an individual parent’s right to the free exercise of religion, courts must also ensure that the best interests of the child are protected.

The Supreme Court has not yet articulated its opinion on religious upbringing and shared custody. With no uniform national law in place, states apply a variety of legal tests. The three most common tests applied by state courts are: (1) whether restricting a parent’s religious practices will cause “actual or substantial” harm to the child, (2) if restricting a parent’s religious practices “might harm” the child in the future, and (3) if the custodial parent objects to the noncustodial parent’s religious activities.

When parents of minor children divorce, custody becomes a major issue.  A move-away trial is one of the most difficult aspects of custodial law. While going through this process, it is critical to have the assistance of an experienced family law attorney.  Jane Wesley Brooks, CFLS, at JWB Family Law can provide this assistance.  For a consultation, please call all us today (619) 234-6123.
Schedule a free 30 minute consultation with JWB Family Law

Regaining Custody of Your Child When One Party Moves Away Without a Motion

Usually, a custodial parent is not allowed to move the children out of state without the approval of the noncustodial parent. When a custodial parent moves the children without the consent of the noncustodial parent, the noncustodial parent is often left bewildered and unsure of the available options. This article will attempt to explain the options available when one parent moves a child out of state without proper authorization from the court.

Directions concerning moving one child away from another parent are often included in parenting plans. Parenting plans are legally binding documents that come in one of two types. One type of parenting plan designates a custodial parent and a noncustodial parent. These parenting plans often detail visiting rights and times. A second type of parenting plan exists between parents who share parental rights. These types of parental plans allow parents mutually to make decision regarding the future of the child. Neither type of parenting plans permits a parent to move a child out of state without the other parent’s consent.

Court Orders

When either a noncustodial or  a custodial parent decides to move a child out of state, many states require that the parent obtain a court order before moving the child out of state. Court orders help protect the rights of both parents and ensure the safety of children.

A divorce agreement is usually violated when a custodial parent moves a child out of state. The noncustodial parent, however, is left with several options: (1) contact the police to see if they will retrieve the children, and (2) if contacting the police is unsuccessful, going through the court system and filing a motion to compel the return of the children. This motion can be filed in the courthouse that issued your original custody order and likely will result in a trial.

Trial

At trial, the court will weigh the benefits and the disruption to the non-custodial parent’s visitation rights. The factors a consider will greatly depend on the state in which the action is filed. The court will consider various factors that might improve the life of the child including increased income for the custodial parent, closer proximity to the custodial parent’s family, educational opportunities, and a new marriage. The greatest disadvantage of moving a child out of state is the lack of stability in the child’s life.

Child Rights

Before moving out of state or away from a parent, much thought should be given to the potential disruption of the child’s life. Children will endure long travel, awkward transitions, and moving away from friends and familiar environments. Relocation of minors should not be taken lightly and the decisions should only be made after great reflection. Not to mention, relocation cases can often be lengthy.

When parents of minor children divorce, custody becomes a major issue.  A move-away trial is one of the most difficult aspects of custodial law. While going through this process, it is critical to have the assistance of an experienced family law attorney.  Jane Wesley Brooks, CFLS, at JWB Family Law can provide this assistance.  For a consultation, please call all us today (619) 234-6123.

 

Schedule a free 30 minute consultation with JWB Family Law

What to Do If Child Protective Services Is Called

No parent wants to find that the person knocking on their door is an investigator from California’s Child Protective Services. Child Protective Services (“CPS”) is a department within the California Department of Social Services that is charged with preventing and addressing child abuse and neglect throughout California. The role of the department is to investigate allegations of child abuse and neglect, and remove children from circumstances where those children are facing abuse and/or neglect. Often times, especially in acrimonious divorce situations where parents cannot find ways to communicate effectively, CPS may be used as a tool to hurt the other parent and secure full custody of children by making false accusations of abuse and/or neglect toward the other parents. In some of these situations, the person reporting such allegations may actually believe the allegations to be true.

However, regardless of the reason that a call was placed to CPS, the charges you could face as a result are almost always criminal. CPS involvement can be a very serious matter, one that can greatly complicate your relationship with your child and your spouse/ex-spouse. A CPS investigation can significantly impact your custody of your child, regardless of a custody agreement that may be in place. If CPS is knocking on your door, there are some steps you can take to make the potential legal process that follows smoother and easier to navigate. Even by taking these steps, you may still be facing a difficult road ahead, but taking them will help ensure that your rights are protected throughout the process. The following suggestions are not listed in any particular order. Some may be more important than others depending on your circumstances, but reading through each of them carefully can help you understand how you should respond throughout the CPS process.

Do Not Voluntarily Admit CPS into Your Home

Unless the CPS agents/investigators requesting access to your home have a warrant, you do not have to admit them into your home. CPS agents are trained to find any number of dangerous circumstances present in your home, ranging from simple safety code violations to leaving sharp kitchen utensils on the counter while you answer the door. Any of these infractions can lead a CPS investigator to determine that your child’s environment is unsafe and poses a risk to the child’s well-being, especially if the agent believes accusations that may have been leveled against you regarding abuse. Don’t give them an open invitation to find excuses to remove your child if you are not legally required to do so by warrant.  By the same token, if they call to make an appointment with you, take the opportunity to “put your best foot forward”  with a clean and safe home environment.

Do Not Respond to CPS Questions Without an Attorney

As mentioned, many CPS charges in California are criminal matters. Just as you should not speak to police outside of the presence of your attorney, you should not speak to CPS investigators outside of the presence of your attorney if the allegations against you are of a criminal matter or potentially used against you in custody litigation. CPS agents can use your responses against you. Any answers you provide can be used against you at a later time. Even vague, seemingly harmless comments or admissions could spell additional trouble for you so consult with your attorney before engaging in communication with the CPS agent..

While you should not answer any questions posed by CPS, you do have the right to ask of what charges you have been accused. State and federal laws prohibit CPS agents from keeping this information from you, and you have a right to demand they inform you of any potential or pending charges.

Have Your Child Examined if You Are Accused of Physical Mistreatment

If a CPS agent informs you that you are being accused of any type of physical mistreatment or abuse, make sure that your child’s doctor gives them a thorough examination as soon as possible to refute that allegation. This can provide strong evidence that you have not engaged in physical abuse toward your child if you are required to appear in court regarding the charges.

Secure Legal Assistance

This is not an exhaustive list of steps to take when facing a CPS investigation. If you are facing a potential CPS investigation, and especially if one has already begun, you must make sure that you secure an attorney that has experience in handling CPS-related issues. Your attorney can provide invaluable support in helping you understand the charges you are or could be facing, and should be present with you during any questioning related to the allegations. No matter how closely you follow the advice above, or how insignificant the charges may seem to you, the CPS process can be terribly time-consuming. It can also be emotionally, physically, and financially draining. Contact JWB Family Law to schedule a consultation to discuss concerns about CPS investigations or allegations against you.
Schedule a free 30 minute consultation with JWB Family Law

Change in Income Could Mean A Modification of Support

California allows courts to issue orders for child and spousal support in appropriate situations. Child support orders are issued to one or both parents to pay a specific amount of money to help support the child. Spousal support orders, on the other hand, are issued for one spouse to pay the other spouse a certain amount of support money each month to help provide sufficient income for basic needs of the spouse to help them maintain a consistent lifestyle.

Each support order is based off of a certain set of factors. If parents cannot agree to an amount for child support, the court will decide on an amount based on the guidelines, which include how much each parent earns or can earn and how much income each parent takes home. For spousal support orders, one of the factors taken into consideration in the amount of the support is what each person pays or can pay to keep the standard of living that was present during the marriage.

Once a support order is issued, a change of circumstances must be shown in order to have the original order modified. For child support orders, a change in circumstances can occur one or both parents has a change in income. If both parents can agree to the change in the amount of support, a new stipulation can be written and given to a judge to sign off on and entered to become effective. However, if the parents cannot agree on a change in the support amount, one parent must file a motion with the court asking for a modification. More than likely, the parents will be required to appear for a hearing where there will be an opportunity to present federal and state income tax returns, pay stubs, and W-2 forms in order for a judge to determine whether a modification based on change in circumstances related to income is allowable.

A spousal support order can also be modified for a change in income to one spouse. However, if there is a significant change in income, the spouse experiencing the change should act quickly and file a petition to have the order changed immediately.  A judge will not backdate a support order to when the change in income occurred. Because of this, if one spouse has a drop in income, for any reason, and falls behind on support, that spouse will be responsible for the entire support amount owed. Since a judge can only modify a support order from the date of the petition, it is imperative that the spouse files a petition for modification as soon as the change in income occurs. Once a petition is filed, a hearing will be set. During the hearing, the spouse will be able to present supporting documentation to show the change in income. If a modification is granted, an order must be prepared, signed and filed before it can become effective.

If you are looking to modify your spousal or child support order, it is important to contact a knowledgeable attorney like Jane Wesley Brooks, CFLS. Contact JWB Family Law to schedule a consultation.
Schedule a free 30 minute consultation with JWB Family Law

Back to the Basics – Child Custody Modification

Are you a divorced parent wanting to modify your child custody or visitation order?  Did a family law judge previously make such order?

As it turns out, there are countless reasons why parents may wish to modify an existing custody order.  For instance, as children grow older, their needs and interests drastically change.  Additionally, as each parent moves on with his or her separate life, new job, new partner, or new home can mean that the parenting plan must be changed.  Before beginning the modification process, you should know and understand your rights.  You should also hire an experienced family law attorney for ease of mind.

Modifying the Child Custody Order

In the ideal world, you and the other parent will simply agree on certain changes and you can easily change the previous court order by using an agreement (or a stipulation).  This agreement form can be found here: http://www.courts.ca.gov/1185.htm#acc11689.  Next, you should make two copies of this form; one for you and one for the other parent.  You then must turn in the original and the two copies of the signed agreement to the judge for the judge’s signature.  Once you have the judge’s signature, make sure you file the agreement with the clerk.

The procedure is quite different, however, if you and the other parent fail to agree on a modification.  When this happens, one of the parents will individually file papers with the Court asking for a modification of the existing child custody and visitation order.  Normally, by wishing to modify your order, you and the other parent will have to meet with a mediator to talk about why you want the order changed before you go to the court hearing.  

When asking for a modification of the custody and visitation order, you must show the Court that there has been a “change in circumstances” since the final custody order was made. This basically means that there has been a significant change that requires a new custody and visitation arrangement to fit the best interest of the child or children.  A significant change is required because it is best for children to have a stable and consistent custody arrangements with their parents.

Modification if you Move Out of State

Suppose you move out of state and later want to modify the order while living in your new state.  Additional rules apply here.  These rules are governed by the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”).  The UCCJEA states that once a state court has made a custody determination, that state has continuing exclusive jurisdiction over all matters concerning that child, unless: (i) a court of the state with jurisdiction determines that the child or the child and a parent no longer have a significant connection with the state and evidence concerning the child’s custody determination is not available in the state; or (ii) a court of the state with jurisdiction, or any other state, determines that both parents, or active parents, and the child no longer live in the state.

Hire an Attorney for your Modification

When parents of minor children divorce, custody and visitation become a major issue.  While going through this process, it is critical to have the assistance of an experienced family law attorney.  Jane Wesley Brooks, CFLS, at JWB Family Law can provide this assistance.  For a consultation, please call all us today (619) 234-6123.

Schedule a free 30 minute consultation with JWB Family Law

What to Do Before You File for Divorce

Coming to terms that you want to divorce your spouse can be a very hard and agonizing decision. Divorce is a serious matter that requires a lot of thought and planning up front in order for you to fully understand and consider all of the consequences that come from a divorce. Because California is a community property state, there are additional considerations that need to be taken into account because it could severely impact how your divorce is settled. If you are contemplating getting a divorce, you should consider taking the following steps before filing:

 

A divorce checklist.

1)   Understand the concept of community property – Since California is a community property state, all of your assets will be divided under this theory. A couple’s community property is all property that was bought or acquired during the marriage, including debts. Property acquired as a gift or inheritance does not count as community property. You can usually tell if the property will be considered community property by the source of the money that was used to buy it. Under the community property theory, each spouse owns one-half of the community property and each is responsible for one-half of the community debt. For example, the money you earn each paycheck is considered community property. If you used this money to buy something for yourself, it may still count as community property.

 

2)   Take an inventory of all of your assets and debts – it is important to make two lists of your assets – one for your community property assets and another for your separate property assets. If your spouse is normally the one that handles all of the financial matters, it is extremely important to bring yourself up to speed and gather as many documents as possible related to these assets. By putting together this inventory list you may have more community property then your originally thought. If your spouse has a pension plan and any part of the funds in the account were earned during the marriage, you may have a right to part of the money in the pension. It is also important to list all of the outstanding debts that you and your spouse owe to understand the extent of the debts that need to be repaid, which will impact the settlement you receive.

 

3)   Realize that anything you do may be connected to your children – Custody, child support, and visitation are hot topics in divorce and can have a huge impact on the outcome of any divorce involving children. If you are considering a divorce, understand that the time before and during the divorce is crucial to your case. You and your spouse’s conduct can either help or hurt the case you are trying to build. For example, if you move out of the marital home it can affect the chances that you receive a custody determination in your favor.

 

4)   Consult an experienced attorney – once you gather as much information as possible and you feel comfortable with the decision to seek a divorce, you should seek the advice and counsel of an experienced attorney like Jane Wesley Brooks, CFLS, to understand about more complex issues like spousal and child support.
Contact JWB Family Law for a consultation and legal advice if you plan to file for divorce in San Diego.

 

Getting divorced in San Diego County? Call us today. 619.234.6123

Schedule a free 30 minute consultation with JWB Family Law

A Brief Intro to Divorcing & Filing Your Taxes

Divorce is typically a difficult and stressful process that many may wish was over before it even started. In some cases, when divorces take long enough or if it happens to be timed right, your divorce may take place right smack in the middle of tax season. As if the divorce was not enough, filing joint taxes together may send you over the edge.

 

Divorce + taxes checklist.

If you find yourself in the middle of a divorce and you have to file your taxes, here are some key points to consider:

    • Determine your filing status. One of the first boxes to check off on your return is whether you are married or single. The answer to this question may seem straightforward, but in order to check the box you have to think about the question first. The IRS wants to know what your marital status was at the end of the year you are filing your taxes for. If your divorce was not final by December 31st of the tax year you are filing for, then you must still consider yourself married.

 

    • Decide who claims the children. Claiming the children as dependents can make a huge difference on your tab with Uncle Sam. This decision may cause a lot of contention between you and your spouse. It may be something that you want your lawyer to handle directly in order to avoid a conflict and can earn you a $4,000 exemption for each qualifying child.

 

    • Support payments can affect your income.  Any support payments, i.e. child and spousal support, made or received between spouses are treated differently. Spousal support payments are deductible by the person who makes the payments and counted as income for the person who receives the payments. Child support is not allowed to be deducted and cannot be counted as income. These rules are important to keep in the back of your head when you are working out your divorce agreement.  

 

    • Community property causes complications. Most states allow each spouse to claim only their income as their own. This is not the case in a community property state.  You could be responsible for claiming part of the income your spouse earned for the tax year you are filing. This is something you should consult your attorney or accountant about.

 

    • Your legal fees are not deductible. The IRS will not let you deduct the legal fees and court costs you spent for getting a divorce. However, you may be able to deduct legal fees paid for tax advice in connection with your divorce and legal feels to set or collect spousal support.

 

  • Property transfers may have to be included. Normally, property transferred or received as part of a divorce settlement will not be subject to capital gain tax. However, if the property is received from a divorce settlement and later sold, you will be responsible for paying taxes on any gains. Additionally, for the property to be counted as part of the divorce, the transfer of this property must be made within a year of the date of the divorce.

Taxes typically complicate any matter, but when mixed with divorce, it can create another set of problems. This is why it’s important to talk to your attorney about the tax implications of your divorce. For knowledgeable and honest advice, contact JWB Family Law to schedule your consultation.

Getting divorced in San Diego County? Call us today. 619.234.6123

Schedule a free 30 minute consultation with JWB Family Law

 

Getting divorced in San Diego County? Call Jane Wesley Brooks Family Law today. 619.234.6123

 

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Jane Wesley Brooks, CFLS
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San Diego, CA 92101

Phone: 619. 234. 6123

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