Planning On Moving Away With Your Kids? Here’s What You Need To Know

In California, when one parent decides to move away from the other and take the children along, the case becomes a “move away” case. Both parents are free to go wherever they want, whenever they want. The only time that it becomes a move away case, is when the moving parent wants to take the children along.

If you are planning on moving away, here are some things to keep in mind:take off

  1. Even a move of a short distance can be a “move away.”The Court has found that a move away case exists where the other parent’s relationship with the children will be affected by the move. In Los Angeles, that means that a move of a fairly short distance could be considered a move away case if heavy traffic prevents the other parent from exercising their old visitation schedule.
  2. Sole legal custody does not equal the right to move away. Even though Family Code 7501 states that the custodial parent has the right to change the child’s residence, Courts will not grant the move-away without a consideration of all relevant factors. The landmark case on move away, In Re Marriage of Burgess(1996) 13 Cal.4th 25 and its successor, In Re Marriage of LaMusga(2004) 32 Cal.4th 1072 established a lengthy set of factors used by the Court in determining move away cases.
  3. These are the LaMusgafactors:1) The reason for the proposed move; 2) The child’s interest in stability and continuity in custodial arrangement; 3) The distance of the proposed move; 4) The age of the child; 5) The child’s relationship with both parents; 6) The relationship between the parents; 7) The wishes of the child; and 8) The extent to which the parents currently are sharing custody. A discussion of all eight factors is a blog entry in and of itself.
  4. The move-away process will likely be a lengthy one.If you plan on moving in the next two months, do not expect the Court to be done with the move away evaluation. Most Courts require a separate evaluation of the child and family situation by a third party, in most cases a Parenting Plan Assessment (PPA) or similar assessment. Due to high demand and low availability, these assessments can take months to complete.
  5. Moving without the Court’s consent could be detrimental to your future success.If a parentage (unmarried with children) or divorce case has been filed and there is no Judgment, moving without an agreement or Court order is a violation of the Automatic Temporary Restraining Orders (ATROs) and could place you at risk of a contempt of Court action. Even if your case is post-judgment, Courts do not look kindly on parents who move away without an agreement or Order, and the decision could impact the Court’s order when the assessments are completed.
  6. The remedy for a move-away without permission is return of the child, not the other parent.If the other parent to your children has moved away without your consent or a Court order, the remedy is an order placing the children in your custody. The Court will not make an order that the other parent return to their former residence. In some situations, such as where the non-custodial parent travels for work, it may not be feasible to be the primary caretaker, regardless of the injustice of the move.

can-i-move-away-if-i-share-custody-with-my-exThis is just a brief introduction to this complex area of law. It has been said that move-away cases are the hardest cases for the judge to determine, because the impact on the parents and the children is so extreme, even when the right decision is made.

If you are planning on moving away with your children, or if you have learned that the other parent plans on moving, do not wait to get help. The attorneys at Sperling Diarian & McAllister have tried numerous move-away cases, and we can help you. Call us today at (818) 205-9090 or email us at consultsperlinglawfirm@gmail.com.

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The New Alimony Law and You

You have probably heard the rumor that under the new Tax Law, spousal support (alimony) will no longer be counted as income to the payee, and will no longer count be a deduction to the payor. For decades, this has been the status quo.

The silver lining is that this new rule does not come into effect until January 1, 2019. If your divorce is entered before then, you’re in the clear. And it looks like the law will not affect divorce Judgments entered prior to January 1, 2019.alimony

What does this mean for you if you are thinking about divorce, or in the middle of an open divorce case? According to the American Bar Association, there is a prediction that divorce rates will skyrocket in 2018 as couples try to take advantage of the tax law before it’s gone.

One thing for certain is that it will affect negotiations in family law disputes. Gone are the days when the paying spouse can agree to pay spousal support “after taxes,” i.e., pay the payee’s tax burden on top of the regular spousal support. This will now be status quo. That is bad news for the payee because they now have one less bargaining chip to up the amount of money they see in their spousal support awards.

But the payee spouse is not the only one who could be negatively affected by this. The paying spouse also takes a hit because they will have to pay income taxes on their entire wages, taxes that may otherwise be offset by the deduction for spousal support. A CPA can best advise on the dollar-for-dollar impact the law will make on high-earning payors.

If you are thinking of divorcing, then seriously consider taking advantage of the tax law in 2018 before it expires. Talk to your CPA or financial advisor as soon as possible to figure out the tax consequences to you. Remember that even though 2018 seems like it just started, the year is almost up to try and finish your divorce. With California’s six-month mandatory waiting period, even if you file in February, your earliest divorce date is in August, and in actuality most divorces take a lot longer.

The attorneys at Sperling Diarian & McAllister is here to help! Contact Mitchell Sperling at (818) 205-9090 Monday through Thursday 8:30 a.m. to 5:00 p.m., or Friday 8:30 a.m. to 12:00 p.m.

 

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Protecting Yourself from Acts of Domestic Violence

If you are a victim of domestic violence, don’t stay silent. There are systems in place to help protect you. Even if you and your abuser are not married, the Court can help you get away from your abuser and find shelter. Domestic violence does not just mean physical assault or battery. It can mean harassing messages, emotional abuse, and threats of violence.

A Domestic Violence Restraining Order can help you. These orders were designed specifically for individuals who suffer from abuse from a spouse, domestic partner, boyfriend/girlfriend, fiancé/fiancée, or close family member (such as a parent/stepparent, sibling/stepsibling, or in-law, to name a few).

While a Temporary Restraining Order is readily obtained, you will have to prove up your case in Court for a “permanent” (1-5 year) Restraining Order. Here are some tips to help you prepare your case, whether you are represented or in pro per (unrepresented by an attorney):

  1. Keep detailed records of all incidents, noting the dates, times, and places of when events took place. Store your records in a place where your abuser cannot find them, such as your vehicle, cell phone, or office. Also take notes of any witnesses who could testify about the events.
  2. If you feel threatened, call the police. Law enforcement is there to help you and to make sure that you are safe.
  3. Do not stay at home if you are afraid that your abuser will find out that you intendomesticd to file for a Restraining Order. Stay in a hotel, or with a friend (preferably someone whose address your abuser does not know).
  4. If you and your abuser share children in common, you can ask the Court to protect your kids as well, but you have to be able to show why the kids need protection. If they were also victims of your abuser’s anger, or if they witnessed your abuser’s anger towards you, that may be grounds to have them protected.
  5. Your abuser will have the right to cross-examine you at the hearing, so be prepared to answer questions from him or her. While the judicial officer may field questions that are harassing in nature, it may be extremely emotionally trying to have to answer inquiries from your abuser.

There is a way out of domestic violence situations. We can help you, and you do not have to suffer in silence. Remember, domestic violence does not just mean physical abuse. The Courts recognize that many other actions constitute domestic violence, to name a few, harassment, credible threats of violence, and credible threats of child abduction.

For more information, contact Mitchell Sperling with Sperling Diarian & McAllister at (818) 205-9090. We can help you.

Father’s Rights in Family Law

It is a common, although mistaken, belief that the family law courts favor the mother in custody and visitation cases. In fact, the Court cannot give either parent precedence for custody or visitation based solely on gender. This has even been codified in various sections of the California Family Code.

If the mother of your children tries to tell you that you do not have rights to see your child, she is incorrect. You have rights, too. You have equal rights to have custody or visitation with your children, even if your name is not on the birth certificate (as long as you can show the Court that there is a bond between you and your children).

The attorneys and staff at Sperling Diarian McAllister and Shore wish you a happy and loving Father’s Day.

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Is Your Spouse Hiding Assets?

Hiding assets during a divorce is sneaky, unethical, and illegal – but it happens much more frequently than most people expect.

Could your spouse be hiding assets? And if they are hiding assets, does that mean you won’t get the divorce settlement you deserve?

If you are going through divorce, you need to ask yourself those two tough questions.

couple-in-financial-argumentMany couples today have complex financial portfolios. (Your list might include your marital residence, rental and/or vacation properties, bank and brokerage accounts, retirement and pension plans, stock options, restricted stock, deferred compensation, life insurance with cash value, perhaps a business or professional practice . .  . and perhaps much more.) Even in the best of times, it can be extremely difficult to keep track of all these moving parts. When a couple decides to divorce, that task can get exponentially more complicated.

As experienced family law attorneys, our office is always on the lookout for the spouse who is hiding assets, cheating, and lying.

We recommend due diligence.  That means getting records, taking statements, and obtaining financial evidence.

If you are thinking of divorce, plan for it.  Start getting records out of the house immediately.  Make copies, get account numbers, find back balances, get the bills, take pictures of assets, get passwords for accounts and emails, back up emails, text messages, and keep a secret diary of daily events.money-04

At Sperling Diarian McAllister and Shore, we shall instruct you in great detail how to conduct yourself during the divorce.  With over 50 years of experience, the firm knows family law.

 

Checklist For Couples With Children: Important Issues To Consider When Creating A Parenting Plan

When couples with children divorce or separate, they need to create an arrangement for the care of their children that best meets their needs. In child custody, that arrangement is known as a parenting plan. A Parenting Plan is a written agreement between parents that lays out their rights and responsibilities in regards to the care of their children. A comprehensive parenting plan is vital to a continuing relationship between children and their unmarried or divoco-parents1rced parents. It is also a useful tool to avoid conflicts that may arise in the future.

A Parenting Plan should cover the day-to-day responsibilities of each parent, the practical considerations of the children’s daily lives, as well as how parents will agree and consult on important long-term issues about their children. What is best for the children is the most important thing to consider when making a parenting plan. The following checklist identifies important issues to consider when developing a parenting plan. These issues are not exhaustive, and are simply meant to help guide your thinking and discussions on the topic.

  1.  Where Will the Children Live?

First and foremost, parents must decide on living arrangements for their children. This is referred to in the courts as “physical custody.” Parents may decide that the children live equally with each parent, moving between two homes on an alternating schedule. Parents may also choose to have the children live primarily with one parent, and have frequent visitation with the other. Regardless of the arrangement, determining where the children will live is usually the first step.

  1.  How Will Legal Decisions be Made?

In most cases, parents will equally share the right and responsibility to make major decisions affecting their children’s lives. These decisions specifically include those regarding their children’s health, education, and religious upbringing. This type of shared decision-making is referred to in the courts as “joint legal custody.” (Under California law, there is a presumption that joint legal custody is in the best interests of the children). In exceptional circumstances, such as those involving physical or substance abuse, sole legal custody may be awarded to one parent alone.

  1.  How Much Child Support Is Needed?

Under California law, child support is calculated using a complex formula using state regulation, which is done using a program called DissoMaster. The DissoMaster’s proposed support is called “Guideline.” The essential factors in calculating the Guideline are the combined income of each parent, the number of children involved, and the amount of time the children spend with each parent. Courts may deviate from the Guideline in exceptional circumstances.

  1.  Who Will Provide Health Insurance?

State and federal laws require that children have health insurance coverage. Parents need to decide who will pay for this coverage. If one parent has a better health insurance policy and/or can obtain coverage at the least cost, that parent will likely be required to continue providing coverage for the children. The payments made toward health insurance will be considered in the process of calculating child support.

  1.  Who Will Pay Uncovered Expenses?

Life is full of unexpected expenses, such as uncovered medical bills, payment for orthodontic devices, or therapeutic services for children. Parents should have a plan in place for splitting these unexpected costs. Parents should also discuss how they will split other sporadic expenses, such as new text books for school, extracurricular activities, or a vehicle for driver–aged children.

  1.  Who Will Provide Transportation to and from School and Other Activities?

Parents need to create a plan for reliably transporting their children where they need to go. Parents will need to consider their individual work schedules and work out a plan for transporting their children to and from daycare, school, extracurricular activities, parties, and play dates. Parents also need to determine who is responsible for transportation when the children’s custody changes hands, where the exchanges will happen, and what the ground rules will be.coparents3

  1.  How Will the Children Spend Their Vacations, Holidays, and Special Events?

How children will spend their vacations, holidays, and other special events (like birthdays) can be a divisive issue between parents. It is important to address this issue early, so both parents understand the rules in advance. Will the children spend certain holidays with one parent every year, or will holidays alternate between parents? Parents should come up with a fair arrangement that considers all school breaks, holidays, and special events (birthdays, Mother’s Day, Father’s Day, and other events such as weddings, graduations, etc.).

  1.  Who Will Attend School and Extracurricular Events?

Parents should decide who will attend parent-teacher conferences and other school and extracurricular events. Will both parents arrive separately to each event, or will events be split? If events are split, parents must decide upon a method for determining who will attend each event. (For example, Mom attends on even-numbered days, and Dad attends on odd-numbered days.)

  1.  Which Third Parties May Visit and Communicate with the Children?

California law recognizes that individuals other than parents often have a significant impact in children’s lives, and have a strong interest in maintaining contact with the children. Parents should decide how and when the children will communicate with these third parties.

  1.  How Will Parents Communicate with Each Other and Their Children?

Generally, parents should not communicate with each other through their children, i.e., use the children as messengers. Parents should decide upon a method and schedule for communicating with each other about the children’s lives and for decision-making. Parents should also decide upon a method and schedule for the children to communicate with them when they are in the other parent’s care.

  1.  Who Will Claim the Tax Deduction(s)?

Generally, the parent with primary physical custody will claim the tax deduction(s) for the children each year. However, the tax deduction is valuable, and can often be used as a bargaining chip during negotiations for child support. Parents may decide that the non-custodial parent will claim the tax deduction(s) each year, or parents may decide to alternate claiming the deduction(s). Parents must decide who will claim the deduction to avoid tax issues with the IRS later on.

  1.  How Will Parents Save for College Expenses?

If the parents have been contributing to a college fund for their children, it is worth discussing how that will continue. Parents may decide to continue contributing jointly to a college savings plan or trust fund, or both parents may decide to start a savings account on their own.

  1.  What Happens if One Parent Must Relocate?

Parents should discuss what to do if one parent finds himself or herself in a situation where he or she needs to relocate away from the other parent. Parents should contemplate this possibility and work through issues like physical custody, visitation, and costs of travel. Parents may agree to prohibit any relocation except with prior court approval and reasonable notice.

  1.  How Will Future Conflicts Be Resolved?

No matter how well parents plan for the future, they simply cannot anticipate every contingency. Since even the most cooperative parents will not always agree, it is important to have a plan in place for resolving future disputes.

At SDMS, we encourage, where possible, parents work with each other to create a parenting plan that is in the best interests of their children. Through mediation, negotiation, or litigation if necessary, our knowledgeable California family law attorneys will be your advocates and help you through difficult situations. If you would like more information about parenting plans, child support, visitation, or any other family law issue, call us at (818) 205-9090 to schedule your free consultation today.

 

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