Saturday, October 18, 2008

Adoptions in Temecula: Step-Parent Adoptions

An adoption action where a child who is not biologically related to one or more parents acquires all the rights of a natural child. Once an adoption is finalized, the adopting parent is obligated to love and support the adopted child as the child was the parent's own. One common type of adoption is when a step-parent assumes the role of the natural parent. This is commonly called a step-parent adoption. In this situation one of the parents is already the natural parent of the child, meaning that only the step-parent need adopt the child. At the end of the adoption process, the step parent is afforded all of the rights and all of the responsibilities of a natural parent. If the step-parent later divorces the natural parent, both parents are treated equally under the law. The natural parent will not be given any preference in awarding custody and each parent will be obligated to pay child support. For this reason, the filing of an adoption proceeding is not one which should be taken lightly by the parents. Before a step-parent may adopt the child, the parental rights of one parent must be terminated because the step-parent will replace the role of one of the child's natural parents. This is done by the filing of a lawsuit in either Riverside or Hemet. Once the lawsuit is filed, the child's relatives and natural parent whose rights are being terminated have a chance to object. If they do, there will be a trial to determine the child's best interests. Generally speaking, the process takes six to nine months. Adoption proceedings are complicated and should not be attempted without the help of an experienced adoption attorney. If you are considering an adoption, you are welcome to contact our office to set up a free consultation.

Thursday, October 16, 2008

Community Property: Are my Assets Separate if I divorce?

Dear Famularo & Associates

In 2000, my husband and I got married. I had assets, he had none. Since that time, I have invested in real estate and received a substantial inheritance. All my separate assets were placed in a trust, and I had my spouse sign interspousal grant deeds granting me all my real property as my sole and separate assets.

I completely kept all my expenses separate from the community. My question is, are these assets my sole and separate property if I ever choose to divorce my husband?

L.A. in Murrieta

Dear L.A.

Yes. Since the money you received was not earned during the marriage, but was inherited, it is your sole and separate property. You were smart to keep all your assets in a separate account and have your husband sign quit claim deeds. Since no community property was invested in your separate property, all your investments will be awarded to you in the event your husband and you someday divorce.

Famularo & Associates

Temecula Lawyers

Child Custody and Tax Exemptions

Dear Famulao & Associates

When I first got divorced back in 2001, my husband and I had a 50-50 custody arrangement of our young son. As part of the terms of the divorce judgment, we had a week-on, week-off arrangement, and we were each given our son as a tax deduction every other year. For the past two years, my ex-husband has not exercised the joint custody order, and has only seen our son every other weekend. My ex has not paid me any child support in over three years, either. Even though the divorce judgment says that I can only claim my son on my taxes every other year, is there any way I can claim my son in all years since I am the only one supporting him?

L.M. in Hemet

Dear L.M.

The Internal Revenue Service tax code allows a parent to claim a child as a tax exemption if the parent provides more than 50% of that child's support, or the child lives with the parent more than 50% of the time. It sounds like you provide both for your child. The IRS will allow you to claim your son as a dependent on your income tax returns even though there is a conflict with the judgment. However, to avoid any confusion, you should go back to court and get an order allowing you to claim your son on your taxes in all years.

Famularo & Associates
Attorneys in Temecula

Name Changes

Dear Famularo & Associates

I have an eleven-year-old daughter. She has never known her father. Legally, she goes by my maiden name. Her father was never even placed on the birth certificate. She has been raised by her step-father since she was three years old. She has asked me if she can go by my new last name, which is the same as her step-father's. I do not know how to contact the father of my child. Can I legally change my daughter's last name? If so, how do I do it?

R.E. in Murrieta

Dear R.E.

Yes, you can change your daughter's last name. However, since you do not know how to contact the father of your daughter, you will probably need a lawyer. In order to change your daughter's last name, you will have to file an application for a name change in your local courthouse. After you file the application, you will need to publish the name change in the newspaper and serve the father of your daughter.

Since you do not how to contact the father, you will have to get permission from the court to dispense with notice. This is done by filing a declaration stating that the father cannot be found and outlining the steps you took to contact him. Once the name change has been published, the court will give you a court date. At the hearing, the court will issue an order changing the last name of your daughter.

Attorneys in Temecula

Spousal Support after Retirement

Dear Famularo & Associates:

I am 65 years old and I live on Social Security. I have been divorced for more than ten years and have been paying spousal support to my ex-wife since our divorce. We were married for more than fifteen years. During the divorce, my ex-wife and I sold our home. We each received one-half of the money. I invested mine, and have been partially living off the investments I acquired. I remarried about six months ago, but my ex-wife has not. My new wife will be retiring at the end of this year.

My question is am I required to pay spousal support while I am living on Social Security and any income that I make off the investments I acquired since our seperation?

E.S. in Hemet

Dear E.S.

In that your marriage was a lengthy one- one that lasted for ten years or more- the court does not have the ability to terminate your spousal support. Even so, the court can reduce your current spousal support order to zero, thereby leaving the possibility of raising your spousal support at a later date, if appropriate.

Since you have been paying spousal support since before you retired, it is highly likely your spousal support should be reduced, if not to zero, then substantially. In awarding spousal support, the court must look at a number of factors. These include your ex-wife's need, your current ability to pay, your ex-wife's attempts to become self-supporting, and separate assets you each have available for support.

You have a right to retire. The court cannot penalize you because your income has decreased after your retirement. Furthermore, you are not expected to decrease the principal on your investments in order to pay your support, nor is your current wife's income considered when calculating spousal support for your ex-wife.

The court has great discretion in awarding spousal support to your ex-wife. In doing so, the court will weigh your current income, which consists of Social Security and dividends on your investments, against your ex-wife's need. The court will examine how much money your ex-wife reasonably needs by looking at her expenses and then deducting her income from those expenses. If there is a shortfall, that is her need. If you have the ability to make up that shortfall, you may be ordered to pay the difference.

Before the court can order you to pay the difference, it usually must look at what steps your ex-wife took to support herself. If she failed to take adequate steps to become self-supporting, the court can reduce her support to zero even if she has a financial need.

Since you are living on a fixed income, chances are your ability to pay support is greatly diminished. Usually in these situations, the court will drastically reduce the amount of spousal support you are ordered to pay or cut it to zero. The bottom line is you need to return to court to modify your spousal support.

Famularo & Associates
Temecula Lawyers

Annulments: My Wife Wants Kids, I Do Not, Do We Qualify For an Annulment?

Dear Famularo & Associates:

My wife and I were married three years ago in another state. We lived together for a full year before we got married. We have no children and no property to divide. My wife and I discussed having children before we married, and I informed her that I had a vasectomy and was unable to father any children. Before our marriage, my wife stated numerous times that although she desired children, she was okay with us never having children.

Since our marriage, we have never had sex. When I asked her why, she stated that she did not want to have sex with me unless I had my vasectomy reversed. My wife often states that that before marrying me she fully expected me to reverse my vasectomy and the only way she can be happy is to have children with me.

As soon as I learned my wife was attempting to pressure me to have my vasectomy reversed, I left her. We have not lived together for more than two years. Do I qualify for an annulment?

N.B. in Hemet

Dear N.B.

In order to qualify for an annulment, you must have married your wife upon a mistaken belief that goes to the heart of the marriage. You must also take steps to end the marriage within a reasonable time after learning the truth. It sounds like you qualify to have your marriage annulled based upon fraud.

A disagreement about children certainly goes to the heart of a marriage. There is nothing more fundamental than a couple's choice to reproduce. You do not want children and your wife does. Your wife misrepresented her desire to have children before your marriage. She told you that she was okay with never having children with you and you married her only after this representation. However, once you were married, your wife told you that she secretly desired to have children all along, and even refused to have sex with you unless you agreed to have your vasectomy reversed. Finally, as soon as you discovered that your wife mislead you and was attempting to force you to have children, you left her. Although you still have not filed any legal documents to end your marriage, you separated from her within a reasonable amount of time and the court will likely grant your annulment.

Famularo & Associates
Temecula Attorneys

Property Downpayment in a Divorce: Does He Get His Down Payment Back?

Dear Famularo & Associates:

My husband and I have been married for almost eight years, and we are now in the process of getting a divorce. While we were married, we bought a house together. My husband used money he inherited from his mother to put a $50,000.00 downpayment on our home. We purchased the house four years ago for $500,000.00. Unfortunately, the housing market has since crashed and there is no longer any equity. I do not believe the house is even worth $350,000.00 today, and we still owe $450,000.00 on the home.

We purchase the house in both our names. Now, my husband says that since the downpayment came from an inheritance, I owe him half of the downpayment. Is this true?

D.B. in Wildomar

Dear D.B.

What your husband is referring to is something called a 2640 reimbursement. The name comes from Section 2640 of the California Family Code. A spouse who uses separate property to purchase a community property asset is entitled to have his or her separate property downpayment repaid during a divorce. Since your husband acquired the $50,000.00 from an inheritance, which is not the result of either spouse's time, effort or skill, the $50,000.00 would be characterized as separate property. However, there are several limitations to being reimbursed under this law.

First, your husband would have to prove through written documentation that the $50,000.00 was acquired through inheritance. This is called tracing. He could do this by producing a will, a copy of a court order, bank statements reflecting the transfer of the money, or any combination of documents which show the money was an inheritance. On the other hand, if you admitted the downpayment came from an inheritance, no tracing is required.

Second, your husband is not entitled to any interest on the money. He is entitled to be repaid the principal on the downpayment, and no more. If your husband used some of his inheritance money to pay the homeowner's insurance or property taxes, he is not entitled to have that money repaid. The answer is more complicated if he used his separate property to make improvements or pay the mortgage payment.

Finally, recovery of the $50,000.00 comes off the top of any equity in the home, and repayment of the $50,000.00 is limited to there actually being equity in your house. Since you owe more money on your house than it is worth, there is no equity from which the $50,000.00 may be repaid. Therefore, your husband will not be able to recover his downpayment from your home.

If, on the other hand, the two of you had $100,000.00 in equity in your home, the 2640 reimbursement would work as follows: your husband would be reimbursed for his separate property downpayment by receiving the first $50,000.00 in equity. Any remaining monies would be divided equally. Thus, your husband would not only receive his $50,000.00 downpayment, but also one-half of the remaining equity, for a total of $75,000.00, while you would receive $25,000.00.

Famularo & Associates
Temecula Attorneys