Do I have to file for divorce by June 30th if I want to file Federal Income Taxes as single next year?

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For tax reasons, the June 30th deadline is very important to many clients. Experienced family law attorneys will tell you that 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.
Your marital filing status is used in determining what type of return you must file, your standard deduction, and the correct tax. This is important because a change in marital status on your tax documents may impact your standard deduction and other tax benefits.

Also, a change in marital status may impact your tax bracket and the amount of income tax you should have withheld from your pay.

California Family Code 2339 provides that no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first. This means that the earliest a Court can issue a final decree of divorce is six months from filing.

Who claims the child dependent exemption?

If you have children, one important tax issue to determine with your family law attorney is 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 claim Head of Household. This can create bigger tax savings. In order 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.

What about the Mortgage?

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.

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. (1): one party can claim all of the payments or, (2) 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.You can contact me at Amanda@gordonfamilylaw.com for more information.

Does getting a divorce have any tax benefits?

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San Francisco Bay Area family law attorneys may tell you about the tax consequences, but are there any benefits?

Yes. You may be able to deduct the legal fees paid for tax advice related to your divorce and you can deduct any legal fees related to spousal support. 

These deductible fees can be claimed only if you itemize deductions on Schedule A (Form 1040). You must claim the fees as miscellaneous itemized deductions subject to the 2%-of-adjusted-gross-income limit. You can contact me at Amanda@gordonfamilylaw.com for more information.

 

If I have failed to make a child support payment, will I lose the ability to see my children?

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Experienced San Francisco County Child Support lawyers will explain to you that in most cases, you will not lose the ability to visit your children. Under California law, both parents of a minor child (i.e., a child under age 18 (Fam C §6500)) have a duty to support that child. Fam C §3900.  However, the failure of a parent to pay his/her child support obligation will not impact the noncustodial parent’s visitation or other privileges granted by a court order. Fam C §3556. 

You will not lose your ability to see your child because the California Family Law system supports and goes to every extent possible to promote the ideal that children have consistent access to both parents. Nevertheless, the failure to pay your child support may result in other civil penalties (such as monetary damages, suspension of your drivers license, revocation of your passport, and wage garnishment) and even criminal penalties like contempt.  For example, California makes the willful failure to provide for a child under the age of 18 a misdemeanor with a maximum punishment of 1 year in the county jail and a $2000 fine. Pen C §270.

If you are having trouble with your payments due to a change in your employment circumstances or other financial strain, you can approach the Court and ask for a modification of your child support payments. The Court uses a guideline scale based on a computer program to estimate child support payments and will grant you relief if you meet certain criteria. If your ex spouse claims that you cannot see your children based on your failure to pay child support, you should consult a good San Francisco Family Lawyer who can help you adjust your You can contact me at Amanda@gordonfamilylaw.com for more information.

 

How to un-do my divorce?

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What happens when you realize that you made a mistake in the papers filed with the Court for a default judgement? Specifically, what can you do to change the Court’s order? Can you alter something that the Court has approved?

This blog post explores the procedural aspects of Family Code Section 2120 -2129 which codify reasons that you can argue to set aside a judgement after the Court has ruled. Grounds for relief include: duress,  perjury, fraud, omissions, and mistake. 

If you feel that something was omitted or misrepresented during your divorce because of information you later learn from your ex spouse and the divorce decree was signed by the Judge, you may want to explore the possibility of asking the court to set aside the judgment. As with most litigation, there is risk associated with asking the court to set aside the judgment and you will want to carefully consider the merits of your case and speak with an attorney about the cost of filing these motions.  

If you decide to go forward and ask the court for relief, procedurally, you will need to ask the Court to re-open the case. This means you will need to file a notice of a motion to set aside a judgment which will include an Application for Order and Supporting Declaration. A motion to set aside a judgment can be prepared similarly to a noticed motion for temporary orders. In most cases, the notice must be personally served on the opposing counsel and party. Important considerations for filing these motions are statutes of limitations (time constraints) and the grounds or claims made. For claims under Family Code 2120, the statute of limitations accrues when a party should have discovered the facts constituting duress, perjury, fraud, omissions, and mistake. For specific time limits, please see Family Code Section 2120. 

Before a court may grant relief, you will need to allege that the grounds for relief materially affected the original outcome of the case. You must also show that you would materially benefit from the relief. You can contact me at Amanda@gordonfamilylaw.com for more information.