Do I need my own attorney for a Prenup?

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Yes.  Prenuptial agreements require that both parties are fully informed about California law and that they disclose finances. Having attorneys on both sides of the agreement prevents future questions about fairness.  A Prenup without two attorneys may be subject to future litigation and enforcement.  Think of it like paying for both the bachelorette and the bachelor party.If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.

Getting Married? Here is why you want a Prenup.

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California is a community property state, which means that if your tech startup idea takes off during the marriage, the business will be split (often 50:50) if you get a divorce. This includes any appreciation to any property (like RSU grants and condos) that you acquired prior to marriage. You can opt out, but only with an agreement.  

Gordon Family Law offers workshops at technology companies and individual client services for pre-marital agreement drafting, review, and negotiating agreements entered into prior to marriage.  If you are working in Silicon Valley, have equity in a company, or previously purchased assets, you should be thinking about a prenup.  If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.

Legal Guide to Getting Married

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Are you a newlywed or recently engaged? This guide is for you! Learn all the practicalities about getting married and which legal documents you will need to update, change, or simply toss.

Marriage Certificate

Each State has its own marriage certificate process. Typically, there is a fee associated with obtaining the license to get married. This license must be signed before it becomes a marriage certificate. Typically, after the marriage ceremony, an officiant signs and returns the marriage license to the County that issued it. Once the County records the license, it turns into an official marriage certificate that you and your new spouse will get a copy of via the mail.

This is an important document and you will want to keep it in a safe space. If your marriage certificate is defective due to problems with filing or signatures, most states have methods of perfecting or correcting the defect, but it’s best to check your local rules.

You’ll need a certified copy of your marriage certificate (or the document you receive from your state or county after filling out your marriage license) before changing your name.

Change of Name

Many individuals choose to change some part of their middle or last name when they get married.In order to do so, you will need to notify a variety of state and federal agencies. A good place to start is contacting your local Social Security Administration office to update your Social Security Card.

To do this, you can make an appointment with your local office and fill out the SS-5 form needed to change your name. Bring original copies of your (1) birth certificate, (2) passport, (3) diver’s license, (4) Social Security Card, and (5) your marriage certificate.

After you update your Social Security Card, you can use the new social security Card to change your name on other documents and accounts such as your:

  • drivers license
  • passport
  • voter registration
  • Title and Registration of your car
  • Bank Accounts
  • Employment documents
  • Retirement Accounts
  • Insurance information
  • Credit Cards
  • Memberships (gym, Netflix, hunting club).
  • Social Media Accounts

To update your passport, you will need to get a color passport photo and send that in along with your current passport and a certified copy of your marriage certificate. You may want to request an additional certified copy of your marriage certificate before you apply for a new passport because you have to mail in a certified copy of your marriage certificate and it can take time to get your copy back. (see form DS-82.)

Another great tip is to order new checks, debit cards, and credit cards as soon as possible, because they can take a long time to arrive.

Beneficiary Designation

Even if you don’t change your name, it’s a good idea to look at your beneficiaries on your retirement accounts, life insurance, and any other bank accounts. Consider updating these designations to your spouse.

Taxes as a Married Couple

If you get married at any point in 2016, you are now required to file taxes either as married filing separately (MFS) or married filing jointly (MFJ) for any income you earn in 2016. What this means is that when you go to file taxes before April 2017, you will no longer have the option of filing as a single person.

For most couples filing a tax return as married filing jointly provides a beneficial tax outcome. Married couples filing a joint return can claim two personal exemptions instead of one and can use a standard deduction of $12,400 verses the single taxpayer deduction of $6,200. You can also choose to itemize your deductions for benefits like mortgage interest payments.

Another benefit of getting married this year is that spouses can give each other unlimited gifts without the gift tax limits.

If you and your partner make relatively similar amounts and do not have children, you may be impacted by the marriage tax penalty. It’s important to check with a tax professional when making choices about your filing status.

My marriage license was never turned in by the officiant, am I married?

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Yes, under most circumstances, even if you had a technical defect in your Marriage License you are legally married under California family law.

The typical process for filing a Marriage License and Certificate looks like this:

1.     The Parties apply for a license,

2.     The wedding ceremony occurs,

3.     The officiant sends the license back to the County Clerk,

4.     The officiant then signs the registration, turning the Marriage License into a Marriage Certificate,

5.     The County records this document with the County Recorder’s Office.

6.     The County Clerk sends all original confidential marriage certificates retained, or originals of reproduced confidential marriage certificates filed after January 1, 1982, to the State Registrar of Vital Statistics (Family Code § 511).

If you have a wedding ceremony in California and you have applied for a marriage license, you are most likely married under California family law even if you fail to send in that license to the County. This is because there is at least one family law case that holds that registration of a marriage certificate is not essential to the validity of a marriage. In 2011, an Appellate Court found that parties who, after marriage ceremony in 1991, submitted marriage certificate for registration that was twice rejected for technical defects and was not resubmitted, and who were married in new ceremony about 10 years later, had been married for 17 years at time of dissolution of their marriage in 2008. In re Marriage of Cantarella (2011) 191 C.A. 4th 916, 923.

There is also a California Health and Safety Code section (§103450) that specifically allows for a party to bring an action requesting an order judicially establishing the fact of, and time and place of, the marriage. The definition of a party includes: “[a] member of a law enforcement agency or a representative of another governmental agency, as provided by law, who is conducting official business.” Health and Safety Code 103526(c)(2)(C).

What does that mean? Well, being married under California law requires you to file taxes with the State and Federal government as married. IRS Publication 17, page 20 states: “State law governs whether you are married or legally separated under a divorce or separate maintenance decree.” 

It also means that you will have to use California's dissolution rules in the family code if you decide to formally and legally separate. 

Contact me at amanda@gordonfamilylaw.com for more information.

 

Marriage, Divorce, and Taxes: Why December 31st 2015 is different than January 1st 2016

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Getting married in 2015? Or considering finalizing your divorce in 2015? Your status makes a difference for your taxes.


The most important thing to remember is that your marital status on the last day of the year (December 31, 2015) determines your marital status for the entire year for the purposes of income tax filing.

Married in 2015?
First, let’s go over some of the IRS rules and benefits for all of those couples getting married this year.  
If you get married at any point in 2015, you are now required to file taxes either as married filing separately (MFS) or married filing jointly (MFJ) for any income you earn in 2015. What this means is that when you go to file taxes next April, you no longer have the option of filing as a single person.
For most couples filing a tax return as married filing jointly provides a beneficial tax outcome. Married couples filing a joint return can claim two personal exemptions instead of one and can use a standard deduction of $12,400 verses the single taxpayer deduction of $6,200. You can also choose to itemize your deductions for benefits like mortgage interest payments.
Another benefit of getting married this year is that spouses can give each other unlimited gifts without the gift tax limits.
All being said, the change in status is not necessarily a win for many professionals as the marriage penalty can start to impact your tax rate. You can determine if you are going to be impacted by the marriage penalty.  

Divorced in 2015
Under the IRS rules, your marital status on the last day of the year or December 31, 2015 determines your marital status for the entire year.
In California, the Court will not issue an official decree of divorce before 6 months from the date of filing and serving of the Petition for dissolution (California Family Code 2339). This means you need to start the process (file) before July 1st.
It is important to remember that most of the biggest taxable events are not necessarily part of the divorce process itself, but actually occur in the years that follow as a result of the divorce settlement, like the sale of a home, capital gains, and who will be able to claim the children as dependents. These won’t really be affected by whether you get divorced in 2015 or 2016.
Here are some common tax credits and exemptions that could impact your decision to file before June 30th, 2015, though:
 

Children
If you have children, one important tax issue to determine who will take the deductions for a dependent child. This is because the tax implications are important. For each dependent a parent can deduct $3,900 from their federal taxable income.  In order to qualify, the child must live with the parent claiming the exemption more than half of the year and be under the age of 19 at the end of the year. Often parents will alternate who gets to claim the exemption from year to year.


If you are able to get a final divorce decree by December 31, 2015 and file as single another benefit may be that one spouse can claim Head of Household. In order to qualify for this status, you and your ex must have lived apart for the last six months and the claiming parent also has to pay more than half of household costs. In this case, the other spouse files his/her return as single.


Mortgages
Another tax benefit to be aware of is the payment of mortgages.  The person who stays in the marital home may be able to take advantage of one of the most popular tax credits which is the mortgage interest deduction. The mortgage interest deduction is the part of your monthly payment that covers the interest you pay on the mortgage.


Property Taxes
The last issue to be aware of is property taxes. If both parties have made any estimated property tax payments this year, then you have two options. First, one party can claim all of the payments or second the payments can be divided between the parties pursuant to an agreement. These payments should be reflected on your tax return.
Tax issues can be complicated, especially when you are changing your filing status from married to single. Consult with a family law attorney and tax professional to make sure you are aware of the risks and benefits associated with changing your tax status.