I lost my job in the middle of a divorce, do I have to pay for health insurance for my soon to be ex spouse?

Probably Not. 

Health Insurance continues to be a tricky issue for divorcing families. Under the automatic temporary restraining orders that go into effect when you file for divorce in California, a party is prohibited from canceling or changing health insurance coverage. Family Code 2040(a)(3). This code section did not address what happens when an individual loses health insurance from a non voluntary termination.

Experienced Family Law attorneys in San Francisco California Bay Area will advise clients that if they lose a job during a divorce, they should give their ex spouse notice that due to a job change they will not be obtaining coverage for the ex spouse. This notice will give the spouse time to plan for new coverage. 

While there is clear answer under the family code, if you are fired or laid off from your job you are probably not responsible for obtaining coverage for your ex spouse. This is because if the cancellation or change is not voluntary then there is no violation of the ATROs.  Nevertheless, there may be an obligation to preserve COBRA rights for the non-employee spouse. And if you voluntarily quit you may be responsible for health coverage.  Additionally, a court could direct a party to obtain health coverage or to consider this expense when calculating child or spousal support.  If you lose your job during a divorce, it is important to understand your obligations - contact a family law attorney to learn more. 

 Contact amanda@gordonfamilylaw.com for more information. 

Can I deduct spousal support from my taxes if we are only separated and not divorced?

Yes, experienced Bay Area California family law attorneys will tell clients that spousal support is tax deductible to the payor even if you are still married.  

The IRS rules about spousal support or alimony state that alimony is deductible to the payor and income to the payee. IRS Rule 26 US Code Section 71 states that if you have a written Agreement, the payor spouse can deduct spousal support so long as the payments are in cash or check, you do not live in the same house as your ex-spouse, the Agreement is in writing, the Agreement states that payments will not continue after the death of the payee, and the payments are not marked as "NOT ALIMONY". 

Even if you are still legally married, if you no longer live in the same house and are making spousal support payments to your ex-spouse you can claim a deduction if you file taxes as Married Filing Separately.  If you file taxes as Married Filing Jointly, you cannot deduct spousal support.  IRS 71(e).

Many couples find it helpful to create a separation agreement - allowing for the dust to settle before divorce. Taking advantage of tax rules around spousal support deductions can reduce your liability at the end of the year and create more cash flow during a difficult time.  Contact a family law attorney or tax specialist to learn more about these rules.

Contact amanda@gordonfamilylaw.com if you are considering a temporary support order. 

I feel like my marriage was a fraud, can I get an Annulment?

Maybe. Often clients are surprised at how specific the situations are where the Court will grant an annulment. Here are some common factual circumstances where a marriage can be annulled:  (1) the couple is related by blood, (2) one spouse was already married before entering into the second marriage, (3) one spouse was not eighteen years old at the time of the marriage, (4) either spouse perpetrated a fraud to obtain the other party's consent to marriage, (5) either spouse has a mental condition that prevents them from understanding and appreciating the nature and duties of marriage—including severe intoxication.

We did not record our marriage certificate, can I get an Annulment?

No. One of the most common questions is whether failure to record a marriage certificate is grounds for an annulment.  Unfortunately, in California the failure to record a certificate of registration of a marriage does not invalidate an otherwise valid marriage. Marriage of Cantarella(2011) 191 CA4th 916, 925.

My spouse only married me to get a Visa, can I get an Annulment?

When one spouse persuades the other to marry because of a secret desire to remain in the United States.  A judgment of nullity based on fraud is also warranted where one party's motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties.

What are examples of fraud that constitute nullity or annulment?

California courts have found the following circumstances as evidence of fraud: (1) if either party hides the knowledge of infertility or sterility, (2) the female partner  hides an existing pregnancy, (3)  concealed intent not to live with the other spouse or (4) concealment of the intent to not to engage in sexual relations with the other spouse, (5) or concealment of the intent to not to have children despite a promise to the contrary.

A recent example where a finding of fraud was supported was in Marriage of Ramirez where a spouse’s intent to ignore his marital obligation of fidelity supported a finding of fraud when the husband intended to continue ongoing simultaneous sexual relationships with both his wife and her sister at time of marriage.

However, not every unhappy situation is a fraud.  For example, an allegation that “the husband turned out to be, in the eyes of his wife, a lazy, unshaven disappointment with a drinking problem” was not enough to justify a judgment of nullity.  Additionally, a spouse’s premarital misrepresentation of his financial status was not enough to grant an annulment based on fraud. 

If you are thinking about asking for an Annulment on the basis of fraud, contact a family law attorney today, you can reach me at amanda@gordonfamilylaw.com

How does Mediation benefit children?

Experienced Bay Area divorce attorneys will tell their clients that in a mediated divorce, both parents agree to work together to do what’s best for their children. This means they cooperate to make a plan for how each parent will be involved with their children and how to make decisions as circumstances change. The parenting plan is often based on needs of the and it has a better chance of success.  

The 10 Year Rule

Is there anything special about a divorce if we are married for 10 years?

Yes. In California there are three benefits to being in a long-term marriage or a marriage for more than 10 (ten) years. I often hear clients talk about the 10 year rule. Experienced family law attorneys in the San Francisco Bay Area of California will tell you that the 10 year rule only applies to very specific aspects of your divorce. 

First, California spousal support rules provide that if a marriage is longer than 10 years the  court will always retain the ability to order that support be paid to the lower wage earner in the marriage. 

Second, the Social Security Administration considers a marriage of 10 years to be a long-term marriage. How this plays out in practice is that if you do not get remarried, you can collect derivative Social Security benefits based on your ex partner’s earnings record at the age of retirement. Those derivatives are usually one half the amount your ex partner is eligible to collect. This is because spouses retain the right to apply for Social Security derivative benefits only if married for 10 years during which the employee spouse contributed to Social Security. 42 USC §402(b)–(c). 

Third, if you ex-spouse is a member of the US Military and you have been married for 10 years or longer, you will receive a pro-rated portion of his/her retirement. 

Contact amanda@gordonfamilylaw.com for more information.