Does alimony or spousal support have to be tax deductible?

No. Parties who wish to avoid deductibility may do so by clearly stating that intention in their agreement or stipulated judgment or order.

Methods of Division of Community Property Other Than by Judicial Decision

1. In-Kind Division: Each party takes one-half of fungible assets such as bank accounts, stock in a corporation, etc.

2. Trade-off Division: The parties stipulate to settle their property disputes, without regard to value, by agreeing one will take certain items of property, e.g., the furniture, and the other will take other items, e.g., the car.

3. Piece-of-cake Division: This method gets its name from the common situation where two children have a piece of cake to be cut in half. To avoid the argument over who gets the "bigger" half, it is agreed that one will cut the cake and the other gets to choose which piece he or she will receive. In the marital property context, one party makes up two lists of the property in question, e.g., furniture, personal property, etc., which he or she believes are equal, and the other party chooses which list of items she or he will take. In using this or any other method, it is important not to break up sets, e.g., a dining room set, a set of dishes, matching art works, etc. The piece-of-cake method is particularly useful for dividing furniture and furnishing which usually have a real value to the parties far in excess of their fair market value as used furniture. This method is also useful in short-term marriages where the dispute is over the division of wedding gifts received by the parties.

4. One Values, the Other Chooses: In this method, one party places a value on each item of community property in dispute and the other party chooses those items he or she will take at the stated value up to one-half the total value. Alternatively, the parties may agree that the party choosing may select any, all or none of the items, with any items not chosen going at the stated value to the one who set the value. An equalization payment can be required. In dividing furniture and furnishings using this or one of the other methods listed, an alternative to piece-by-piece choice is to list furniture and furnishings room-by-room and have alternate choices by room.

5. You Take It or I Will Take It: In this method one party places a value on an asset at which that party is willing to let the other party be awarded the asset, or else the former will be awarded the asset at that value.

6. Appraisal and Alternate Selection: An appraiser is selected by stipulation to value each of the items in question. The parties then choose items alternately until all items are taken. The one to make the first choice can be designated by the flip of a coin. Another approach is to let one party go first and the other party then gets two selections, after which choices are made alternatively. As mentioned in No. 3 above, it is usually preferable to agree that sets not be broken up. It might be agreed that if a party takes a set it counts as that many choices, e.g., a dining room table and four matching chairs counts as five choices, and the other party then makes the next five choices.

7. Sale: The parties agree that the items in question be sold at a public sale or to a particular buyer with the proceeds divided equally, or in whatever other proportion is necessary to accomplish a satisfactory or equal division, considering the other marital assets or obligations each is receiving. For modest furniture or furnishings, the sale may be a garage sale, since this might be what the court would order.

8. Sealed Bid: Each of the parties submits a sealed bid on each item of property in dispute, using the same list. The bids are opened simultaneously and the one bidding the highest amount for an item gets that item valued at the figure he or she bid, with an equalizing payment to be made, if necessary. This method can also be used for disposition of the family home, other real property and a family business which both parties have operated, where each seeks to have it awarded to him or her.

9. Interspousal Auction: This is a straight auction between the parties, usually with an agreed minimum incremental increase over the last bid being required. The high bidder gets the asset at the amount of his or her bid with an equalizing payment being made, if necessary. To the extent a major asset is involved such as a family business or real estate, the stipulation might provide that each of the parties have an advisor present during the bidding. [13 Cal. App. 4th 95]

10. Arbitration: The valuation and division of the community property in question could be determined by an arbitrator selected by the parties. The parties should understand that the arbitrator is not required to follow the law, and his or her decision, for all practical purposes, is final and not subject to appeal. Because arbitration usually takes much less time than a court trial, the parties might consider stipulating with the consent of the judge, that the judge hear the case as an arbitrator.

11. Mediation: Mediation is greatly underutilized in family law cases. It can be a very effective and satisfying way for the parties to reach agreement on the value and division of their marital property.

12. Real Property: If both parties want community real property, one of the foregoing methods of resolution can be used. If neither wants it, it can be listed for sale with a broker stipulated to by the parties, at a listing price recommended by the broker. If one wants the property but the other feels he or she is offering too little, the latter can list it for sale with a broker of his or her choosing. If the property does not sell within a specified period of time, the listing price will be periodically reduced until it reaches the figure where the net proceeds would be equal to what the other party offered. The property then goes to the offering party for the amount of the offer.

13. Combination: Where more than one marital asset is in dispute, one of the foregoing methods might be used for one asset, while one or more other methods might be used for other assets.

Source: http://law.justia.com/cases/california/court-of-appeal/4th/13/81.html

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

The tax consequences of spousal support

If you are like many individuals divorcing in 2016, you are considering the tax implications of divorce.  Alimony or spousal support payments can provide a huge tax benefit, especially if the payor (person paying support) falls into AMT or Alternative Minimum Tax bracket. This is because your alimony payments are taken from the above the line calculation or subtracted from your gross income for the purposes of establishing your income tax bracket. You can take advantage of this tax benefit even if you have not yet received a final divorce decree.

Unfortunately, many clients hire a family law attorney after they have a back of the envelope or kitchen table deal with their ex-spouse. These agreements include spousal support or cash payments from one spouse to another, however, not all of these payments are considered spousal support and tax deductible.

In order for a Spousal Support payment to be tax deductible, there needs to be a signed agreement dated prior to the date of the first support payment is made.

This agreement needs to satisfy all of the IRS Section 71 requirements, which includes:

1) describing payments as an alimony or separate maintenance payment
2) describing payments as part of a separation agreement
3) saying that payments wouldn't be paid in the event of (after) the death of the payee spouse

If you are considering divorce and know that there will be an amount of spousal support between you and your spouse, we recommend you contact a Bay Area Family Law attorney to make sure that the payments can be deductible.  

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

Do I need my ex’s permission to enroll my child in swimming lessons during my parenting time?

No. You do not need your co-parent’s permission to enroll your child in extracurricular activities during your parenting time. The decision to permit participation is a parenting decision.  So long as a parent has sole or joint legal custody, they may enroll a child.  If there is a dispute about whether the enrollment unreasonably infringes on the other parent's custodial time or if the child's participation is in the child's best interest are issues that a court can resolve if the parents disagree.

The requirement for an agreement between the parents is usually tied to the expense of the activity, so that one parent cannot unilaterally commit the finances of the other parent.  However, since extracurricular activities are a discretionary add-on, there is no absolute right to require the other parent to share the cost (although, in practice, this is usually what courts order). 

What is Nunc Pro Tunc?

Nunc pro tunc is a Latin expression, which means now for then. In general, a court ruling nunc pro tunc applies retroactively to correct an earlier ruling.

In California, the court has discretion in family law matters to order an entry of judgment nunc pro tunc, which makes the order relate back in time to when it should have been entered, to avoid injustice

When a judgment of dissolution was not entered through mistake, negligence, or inadvertence or was not entered as soon as it could have been, the court may order that it be deemed entered as of the date that it originally could have been entered. Family Code § 2346(a).

In order to ask the Court to enter your Judgment as nunc pro tunc, you should create a Declaration explaining to the court what date you want the nunc pro tunc to be effective.  A nunc pro tunc does not have anything to do with the filing, other than establishing the case.  The declaration should indicate the earliest date, for example, 6 months and 1 day from date of service/appearance of Respondent, that the Court had the jurisdiction to enter a termination of marriage order and then state what date you want it actually effective.  

For example if you served the other party on May 1, 2015 earliest date for termination of the marriage would be November 2, 2015 but it is now January 4, 2016 of the following year.  You can ask the Court to enter the judgment as 12-31 of the prior year and explain that you need the order because you have remarried and you need the tax advantages of single filing; or whatever else is the reason.

Here are some other examples: A judgment may be entered nunc pro tunc to a date prior to the death of a party even though (1) no subsequent marriage is involved and (2) a surviving spouse will be divested of rights by such entry of judgment. Waller v. Waller (1970) 3 CA 3d 456, 466.

However, a nunc pro tunc entry of judgment is not okay when it is sought solely to defeat the rights of the surviving spouse and will not preserve any significant rights to the decedent’s estate. Marrige of Frapwell (1975) 53 CA 3d 479, 485.

The court may grant nunc pro tunc entry of a judgment on its own motion or on that of a party to the action. Family Code §2346(b). 

In addition, anyone “whose rights are threatened by a delay which is not his fault” may apply for relief under the court’s authority to grant the remedy on its own motion.  This right has been extended to the putative spouse of one whose previous marriage was not finally terminated at the time of the subsequent marriage, to a child seeking to establish his or her legitimacy and the personal representative of a deceased party.

In no event, however, may a judgment obtained by a contested trial be deemed entered as of a date before the trial. Family Code §2346(d). 

If you are considering using the nunc pro tunc process, you should contact a family law attorney to make sure you are correctly following court procedure. Contact me at amanda@gordonfamilylaw.com for more information.