If you currently practice family law, or if you know someone who does, we want to hear from you! We are looking for a family law associate with 3-5 years’ prior experience to join our busy practice. You can find our full job posting here on our recruiter’s website, which is here. Or, you find the job posting here on LinkedIn.
The Kansas Supreme Court issued a ruling on Friday entitling same sex partners to parental rights over children which they help raise. The Court affirmed a lower court ruling which awarded parental rights to the non-biological mother of two children conceived through artificial insemination and raised by her and the children’s biological mother during their partnership. The lower court had denied the biological mother’s attempt to cut off her former partner’s contact with the children after the couple separated, granting joint custody to both women.
If you want to read the full opinion, you can find it on the Kansas Supreme Court website by clicking here.
An amusing case came down from the First District Court of Appeals in late January regarding whether a Judgment may be set aside based on ineffective assistance of counsel. In Re Marriage of Campi was a family law matter involving a garbage collector and a homemaker who had accumulated a significant amount of property and their dispute regarding the amount of the equalizing payment due pursuant to their agreed upon property division. After a long cause hearing on the issue and objections from each side regarding the tentative statement of decision, the trial court adopted the amount of Mr. Campi’s proposed equalizing payment. Note that a ruling in his favor did not stop him from appealing, mostly based on his contention that he was represented by ineffective counsel. See In Re Marriage of Campi , No. A134030, slip op., (1st App. Dist., Div. Four, January 24, 2013)
The appellate court noted Mr. Campi’s “novel argument that has no legal basis: that the trial court committed reversible error when it denied his motion for a new trial based on ineffective assistance of his counsel.” If you are unable to guess the outcome based on the court’s characterization of Mr. Campi’s rather creative legal contention, the court found his argument to be frivolous. It stopped short of adding insult to injury by calling it garbage. See Id.at p. 9-10.
As the Campi court explained “[T]he general rule is that there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” (Citing Walker v. State Bar (1989) 49 Cal.3d 1107. The Campi court further cited Chevalier v. Dubin (1980) 104 Cal.App.3d 975, pursuant to which the appellate court concluded that since appellant had chosen his counsel to represent him, he was not entitled to a retrial because his attorney was ineffective. Finally, the Campi court noted “Indeed, the general rule is that attorney neglect in civil cases, if any, is imputed to the client.” See Id. at p. at 10 (citing Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d. 892, 895.)
There are the notable exceptions to this rule in family law for indigent parents involved in dependency proceedings and for parties where a hearing may result in the termination of parental rights. See Welf. & Inst. Code, § 317; rule 5.534(g) & (h); In re Arturo A. (1992) 8 Cal.App.4th 229, 238. However, the Campi case involved a dispute over the amount of an equalizing payment, and Mr. Campi’s valiant attempts to resuscitate 70 year old cases in order to carve out his own exception ultimately failed. The appellate court found that there is no right to counsel in dissolution cases and denied his appeal on that basis. See Id. at p. 10-11.
Thus, unless you fall within one of the narrow exceptions having to do with dependency proceedings and possible termination of parental rights, there is no right to counsel and you cannot argue ineffective assistance of counsel as a basis for setting aside orders in your case. Please note that this holding does not mean that Mr. Campi has no avenues for redress. It just means that the family court is not one of them. It also does not affect a needy party’s ability to request an award of attorney’s fees from the other party in order to hire counsel. In this case, Mr. Campi had hired his counsel and whether or not he could afford to pay his attorney was not at issue.
With the arrival of tax season, it is important that you take a few moments to consider the tax issues inherent to your dissolution case and/or Judgment for Dissolution. In order to avoid common problems associated with filing your taxes during and after your dissolution, you should review the following:
1. Your current Order or Judgment for spousal or family support.
2. Your current Order or Judgment for child support.
3. Bank records demonstrating amounts that you have paid or received for spousal support during the calendar year.
4. Your current Order for child custody and visitation.
5. Any correspondence or billing statements from your attorney indicating any amount or portion of your attorney’s fees and costs paid during the calendar year that pertained to:
a. Income tax analysis, income tax advice, and income tax planning regarding your dissolution.
b. Production (or enforcement) of income (spousal support).
c. The acquisition and preservation of title to an asset.
After reviewing these records, you should note:
1. Whether your spousal support Order indicates the payment of deductible or non-deductible/taxable or non-taxable spousal support. If your Order contains provisions for a lump sum buy-out of spousal support you need to understand whether that amount is taxable or deductible.
2. How much family or spousal support was ordered versus how much you actually received or paid. If you received or paid an amount different from the payment specified in your Order, you should consult with your attorney.
3. Whether your spouse’s calculation of the amount that he or she paid you or received from you for spousal or family support matches your calculation. You may trigger an audit if the amounts claimed by each party do not match.
4. Which party is entitled to claim any children as dependents.
5. Whether you are eligible under your custody schedule to claim Head of Household status. Again, it is a good idea to verify with your spouse/former spouse which of you intends to claim Head of Household in order to avoid unnecessarily triggering an audit.
If you have any questions regarding your support and/or custody Orders, you should consult with a CPA or tax attorney before filing your returns. If you have your tax returns professionally prepared, you should gather the above-referenced information and/or records to take to your tax professional. If you prepare your own taxes, you should consult the appropriate sources to determine how to properly present this information on your returns.
The amount of taxes an individual pays is one of the significant factors impacting the amount of support paid. As a result of the fiscal cliff deal, aka the “American Taxpayer Relief Act of 2012” (“The Act”), a high earner who pays support under an existing support obligation may be paying too much in support if the support order was made before December 31, 2012.
In general, higher taxes will reduce a payor’s support obligation, but tax deductions including breaks tax payers receive for mortgage interest, property tax and charitable contributions increase a payor’s support obligation. The concept here is that if a person receives some tax break, he or she has more net spendable income (i.e. less money goes to taxes and more money is in her or his pocket) to pay support.
Under The Act, higher earners will be in higher tax brackets, plus they may lose some value in their itemized deductions as a result of the re-emergence of the “Pease Limitation,” which is a limitation on itemized deductions. Pease was phased out years ago — but now is back in play with The Act. This limit kicks in and begins limiting itemized deductions once an individual’s gross income hits the “applicable amount.” The “applicable amount” for single filers is $250,000 and for joint filers it is $300,000. All income over the “applicable amount” reduces your tax deduction by 3%. For example if you file as an individual and declare an adjusted gross income of $500,000, then you are $250,000 over your “applicable amount” which means you lose 3% of $250,000 – or $7,500 of your total itemized deductions. In other words, that $7,500 is no longer sheltered from taxes and if your support order was created prior to December 31, 2012, the calculation used most likely is incorrect – i.e. the calculation incorrectly assumes that the $7,500 is sheltered from taxes – and hence the support order is too high.
There’s more. In addition to the Pease Limitation, The Act restores prior Personal Exemption Phase-Outs (“PEP”). Under PEP, individuals with adjusted gross incomes over the “applicable amount” can no longer claim their full personal exemption. For 2012, the personal exemption was $3,800. Under The Act, for every $2,500 an individual’s income surpasses the “applicable amount”, then the individual’s exemption is reduced by 2%. For higher earning individuals who pay support, this phase out means greater taxes which mean a pre-existing support order is probably too high.
Of course, the Pease limitation and PEP phase-out apply to all tax payers, including not only parties paying support, but parties receiving support. The tax effects of the Act on BOTH parties must be reviewed to determine the correct level of support.
Ordinarily, marital dissolution involves too much hostility and distrust for couples to co-manage a family business following divorce. Occasionally, however, divorcing parties believe that it is in their best financial interest to jointly manage and control a family business post divorce. Read more about this in a recent NYT article: Read more about this here.
The U.S. Supreme Court will soon determine the constitutionality of the 1996 Defense of Marriage ACT (DOMA) which defines marriage as a union between a man and a woman. DOMA prevents same-sex marriage couples and same-sex registered domestic partners from sharing any federally granted rights and protections that are guaranteed by law for opposite sex married persons (e.g. the ability to file joint federal tax returns, derivative social security benefits for surviving spouses, COBRA health insurance benefits for divorced spouses, 1041 tax-free property transfers between spouses, deductability of spousal support for divorced spouses etc., etc.).
California has its own version of DOMA, but its version is embedded in the California’s State Constitution. In 2008, California voters passed Prop 8 which amended the State’s Constitution to restrict marriage only to persons of the opposite sex. In 2010, a U.S. District Court overturned Proposition 8 and in 2012 the 9th Circuit of Appeals affirmed the District Court’s decision (Perry v. Schwarzenegger). This case is now on its way to the U.S. Supreme Court, as is a companion case that addresses the separate but related issue of whether DOMA is unconstitutional as a violation of equal protection. A decision on both cases is expected by June 2013. In the meantime, same-sex couples in California remain unable to be legally married in this state.
It is important that same-sex couples who married prior to the passage of California’s Proposition 8 consider the potentially significant tax consequences that may result if the U.S. Supreme Court determines that DOMA is unconstitutional. Those same-sex couples who are currently married may benefit by filing their tax returns before the U.S. Supreme Court announces its decision.
The U.S. Supreme Court’s order granting cert can be found here.
An article in today’s New York Times (Kramer.com vs. Kramer.com) discusses the benefits today’s technology provides parents in difficult custody matters.
Last week, US News reported on a University of Michigan study that found tens of thousands of women each year lose their private insurance after divorce
View the report here.
The study results come as no surprise to most family law attorneys. Making sure that every family member (husband, wife, minor children and college-aged children) has adequate health insurance is a significant issue for all divorcing couples. If a client has been on his or her spouse’s insurance plan, then s/he must navigate through the rights and options to health insurance post divorce. Those rights and options are limited in terms of cost and length of coverage by both federal and state laws. Private health insurance for individuals can be extremely expensive and sometimes not obtainable especially if the individual has had a pre-existing condition. In those cases where affordable health insurance is not possible, divorcing couples sometimes agree to delay the date of their divorce judgment (to extend health insurance benefits) and sometimes they pursue options that are available other than divorce (i.e. post-nuptial agreements rather than divorce).
Autumn has arrived, and with the children settled back in school, it is time to take a proactive look forward to the upcoming holiday season. Many families have custody and visitation Orders that include designations regarding where children will spend each of the coming holidays. It is a good idea to take out your final Judgment of Dissolution or current custody and visitation Order, if it is not part of a Judgment or has been revised since your Judgment was entered, and review it to re-familiarize yourself with the holiday schedule for the next four months. This will allow you to properly plan for the holidays and to deal with any anticipated issues before they arise. Taking care of this well ahead of time will reduce stress and conflict and if necessary, allow enough time to bring a specific issue before the Court if necessary.
When re-familiarizing yourself with your holiday schedule, you should look at the following:
- Note all of the upcoming holidays that your family celebrates and make sure that each holiday is addressed in your Judgment or Order.
- What, if any, travel plans does your family have? If so, what type of travel information do you need to provide the other parent regarding your travels and by when?
- Do any of the plans that your family has for the holiday season conflict with the Judgment or Order?
- Are there any holidays for which there are no Orders or pursuant to which your Judgment or Order designates that you and the other parent will work out an Order?
- What information do you need to communicate to the other parent in order to finalize the holiday schedule and/or work out any issues that you see now?
After reviewing your Judgment or current custody and visitation Orders, you should make a list of all issues that need to be addressed. If you are represented by counsel or wish to contact an attorney regarding any issues, you should have your list ready when you speak to them along with any proposed communication to the other parent suggesting solutions for dealing with scheduling issues.
All communication with the other parent on any issue, including custody and visitation, should be succinct, professional, and non-provocative. It should address only the issues at hand and should avoid touching on any other unrelated subject, issue, or idea. Finally, it should always be devoid of accusation, name-calling, recollection of past wrongs, arguments, difficulties and the like.
Families with children already have a lot going on during the holidays. Taking the time to deal with your holiday schedule now will save you stress, helping you to avoid the possibility of trying to get into court at the last minute in the middle of an already stressful holiday season.