Modesto Bankruptcy Attorney

If you are looking to claim Chapter 7 bankruptcy, you must make sure that you qualify. In order to meets the requirements for Chapter 7 bankruptcy, you must first pass the means test and go through credit counseling. Unless you pass the means test, you will not be able to declare Chapter 7 bankruptcy. As long as you pass the means test and obtain a certificate from credit counseling, you are on the road to a debt free life. By calling one of our Modesto bankruptcy lawyers you can find out whether or not you pass the means test.

Is there any other relief if I don’t qualify for a Chapter 7 bankruptcy?

If you do not qualify for a Chapter 7 bankruptcy there is also a Chapter 13 bankruptcy called reorganization. When you file a Chapter 13, a plan is created where you make payments to a bankruptcy trustee, which allows you to pay off portions of your debt based income and expenses. One advantage of this plan is the ability in certain circumstances to strip the second lien or second mortgage off of your property.

To find out how one of our Modesto bankruptcy attorneys can help, give us a call!

Call us for an in-depth consultation in our Modesto, CA bankruptcy office.

Call us for an in-depth consultation with one of our experienced bankruptcy lawyers at (209) 214-6600. We normally keep regular hours Monday through Friday from 9am – 6pm, but if the weekend works better for your schedule, just give us a call and we will setup an appropriate time for you. We will make sure you get your problems resolved.

Thomas Hogan Law Office Modesto

1207 13th St. #1 Modesto, CA 95354
Phone: (209) 214-6600
Hours of operation:
Monday: 9:00 am – 6:00 pm
Tuesday: 9:00 am – 6:00 pm
Wednesday: 9:00 am – 6:00 pm
Thursday: 9:00 am – 6:00 pm
Friday: 9:00 am – 6:00 pm
Saturday: Flexible, give us a call
Sunday: Closed

If one spouse files for bankruptcy and the other spouse does not file, then the credit card company will “go after” the spouse who did not file. When spouses obtain a credit card, they usually sign a contract holds both parties jointly and severally liable. Basically, this means that if one spouse should die or files for bankruptcy, then the other spouse is liable for the entire credit card debt. The credit card companies do not care whether it is fair to collect the debt from you or from your ex-spouse, even if the charges were incurred by your ex-spouse. The credit card company is possessed with only one objective, and that is to collect money.

Our attorneys have many years of combined experience in helping clients navigate through their bankruptcy cases. We are well versed in helping you to maximize your bankruptcy protections and to keep your personal assets to get a fresh start. Call (209) 214-6600 to speak with a Modesto Bankruptcy Attorney today!

Section 523(a)(5) of the Bankruptcy Code now makes all support obligations non-dischargeable (the debt cannot be eliminated). In addition, all property settlement debts that are owed to a spouse, former spouse, or a child of the debtor are non-dischargeable in a Chapter 7 bankruptcy. Therefore, a non-debtor spouse is no longer technically required to file an adversary complaint to block a debtor spouse from trying to bankrupt debt that is owed under a property settlement agreement. However, it is my professional opinion that a prudent non-debtor spouse should still file an adversary complaint. A non-debtor spouse should make certain that a debtor ex-spouse is not successful in his or her efforts in trying to discharge marital debts that are owed under a property settlement agreement. Due caution should be exercised until the bankruptcy laws on these issues are settled.

We have represented clients for the past 30 years experience in helping them navigate through their divorce decree and bankruptcy cases. We are well versed in helping you to maximize your bankruptcy protections and to keep your personal assets. Our bankruptcy attorneys look forward to helping you get a fresh start.

Call (209) 214-6600 to speak with an Attorney today!

Any support, whether it is called family support, alimony, or child support, is made non-dischargeable (the debt can’t be eliminated) in bankruptcy by the Bankruptcy Code. The spouse who receives the support does not have to file any type of proofs of claims or objections to the Bankruptcy Court to enforce her rights to continue to receive support. In most cases, once a debtor files for bankruptcy, all creditors must stop all actions to collect their debts. This block is called an “automatic stay”. The automatic stay does not apply to the enforcement of the collection of child support or alimony. These types of obligations have a super priority under the Bankruptcy Code.

The attorneys of The Law Office of Thomas Hogan specialize in bankruptcy & divorce. Call (209) 214-6600 to speak with our Modesto Bankruptcy Attorneys.

Divorce can be a war of attrition. The family court often requires the husband to pay the wife’s counsel fees, which could be $10,000 or higher. This can definitely take a toll on someone’s morale and pocket.

It’s common to hear about ex-husbands filing for bankruptcy after a divorce is over, and often the husband will list the wife’s lawyer fees as a debt on his bankruptcy schedules. Consequently, lawyer’s fees as a dis-chargeable debt in bankruptcy become a big issue. The key question is whether the counsel fee debt is declared as a support obligation or property settlement claim.

The California Bankruptcy Court recently declared obligation to pay spousal support and attorney fees as non-dischargeable pursuant to 11 U.S.C. §523(a)(5). Van Aken v. Van Aken, 2005 Fed. App.0001 (6th Cir. 2005).

If an ex-husband attempts to discharge a counsel fee award, it is imperative that the wife files an adversary proceeding with the Bankruptcy Court. This request calls for a Court hearing over the dispute, and the Court decides whether the counsel fee award is support and non-dischargeable. Likewise, the Bankruptcy Court could determine the counsel fee award was a form of equitable distribution that can be discharged. The Court could also order the payment terms be restructured. It is important to note that if a non-debtor spouse ignores a spouse’s bankruptcy filing, disastrous results could ensure. No objection typically means the debtor spouse will successfully discharge a counsel fee obligation. Call us for help with bankruptcy after divorce.

In general, filing for bankruptcy will not affect your spouse’s property. In a Chapter 7 bankruptcy, the Trustee will be able to take your owned property if it is not exempt. The Trustee can’t take your spouse’s property.

The answer is a little more complicated when jointly-owned property comes into play. The Trustee can take only your portion of the property or all of it depending on the nature of your ownership. Selling the jointly-owned property may be required to divide it between the joint owner and the Trustee.

You should be able to keep your SEP, IRA and 401(k) plans. In many states, IRAs are exempt, save for deposits made within six months before filing. EISA plans are also protected if their documentation contains spendthrift protection.

In California, a life insurance’s cash value exemption is capped at a certain amount, provided you meet the property beneficiaries and meet other requirements. Call the professionals at (209) 214-6600 to help you in your time of need.

Once a divorce is filed, there are growing fears that the family will fall apart. It is a sad reality that many families simply can’t pay for the mortgage or other major expenses when they split up. Filing a Chapter 13 bankruptcy stops the foreclosure, and enables the family to propose a debt restructuring plan and a payment plan on the mortgage rearrangements. At the very least, a Chapter 13 bankruptcy will buy the family time to find a decent apartment within their means.

Alternatively, a Chapter 13 bankruptcy could give a family some time to put their home on the real estate market. A family receives the except equity in their home if it’s sold at a sheriff’s sale, but only after the sheriff’s fees, bank’s lawyer fees, and the mortgage are fully paid off. It is always recommended that an financially constrained family sells their home in a “distress sale” rather than loses it in a sheriffs’ sale.

Thomas Hogan’s Law Office specializes in bankruptcy & divorce and we are prepared to help help you. Call (209) 214-6600 to speak with our Modesto Divorce Attorneys.

Section 523(a)(5) of the Bankruptcy Code now makes all support obligations non-dischargeable in all chapters. In addition, all property settlement debts owed to a spouse, former spouse, or a debtor’s child are non-dischargeable in a Chapter 7. Therefore, a non-debtor spouse is no longer technically required to file an adversary complaint to block a debtor spouse from trying to bankrupt debt owed under a property settlement agreement. However, it still makes sense for a non-debtor spouse to file an adversary complaint. A non-debtor spouse should be completely certain that the debtor ex-spouse does not discharge marital debts owed under the agreement. Due caution should be exercised until the bankruptcy laws on these issues are settled. The ability to pay and the balancing tests have been eliminated from Section 523(a)(15) of the Bankruptcy Code, and Section 523(c) of the Code was amended so a property settlement discharge proceeding is no longer required to be brought into the bankruptcy court. It is important to emphasize that these types of debts still remain dischargeable in a Chapter 13 case. Therefore, most future bankruptcy litigation over family law debts will be contested in a Chapter 13 case rather than a Chapter 7 Case.

The Law Office of Thomas Hogan is a bankruptcy & divorce law specialist who is prepared to help help you. Call (209) 214-6600 to speak with our Modesto Divorce Attorneys.

Living in California is expensive, and divorce can be even more so when bankruptcy is involved. A divorce can trigger a bankruptcy filing for a multitude of reasons, and it quite often turns into a supreme mess. There is no clear winner ad loser in a divorce case, so all parties should try to achieve a compromise and reach a fair property settlement agreement. In many cases, a bankruptcy can help out both spouses if they joint file.
If an ex-spouse files for bankruptcy, the family court can still hear testimony and decided issues relating to support. However, the court requires stay relief for equitable distribution, which involves the bankruptcy court permitting the divorce case to continue. Basically, the family court won’t split up the family home, divide pensions, or apportion any stocks or mutual funds until it receives permission from the bankruptcy court.

Can Breathalyzer Results Be Trusted

Written on:

A breathalyzer test is sometimes used by police to confirm whether or not an individual was driving under the influence of alcohol. The results are often used as evidence at a DUI trial. However, many people question how reliable these tests really are.

A breathalyzer measures and detects molecules in breath alcohol, which is a vapor that escapes the body through breath after a person consumes alcohol. As with any test, there are factors that make it susceptible to error.

  • All breathalyzers have a margin of error. For example, a machine may measure breath alcohol at .08% but the actual percentage could be anywhere from .07% to .09%.
  • Instead of measuring blood alcohol concentration (BAC) directly, breathalyzers estimate BAC by breath alcohol levels, which can result in an incorrect result.
  • Radio frequency interference (RFI) from a police radio can also cause a breathalyzer to perform erroneously.
  • In order for a breathalyzer device to function properly, it must be calibrated regularly.
  • Mouth-alcohol contamination is also something to be considered. For instance, if a person burps or vomits shortly before testing, the breathalyzer might detect alcohol that is lingering in the mouth or stomach in addition to breath alcohol.
  • It is also possible for a test to be contaminated with the mouth-alcohol from a prior subject or atmospheric fumes.

The Law Office of Thomas Hogan is a DUI/DWI Law Specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help. Call (209) 214-6600 to speak with our Modesto California Attorneys.

Marriage vs. Domestic Partnership

Written on:

Although a registered domestic partnership (RDP) in California grants both parties all the rights, benefits and obligations as parties in a valid marriage, there are still many differences. For example, federal law and many other states do not acknowledge domestic partnerships. Consequently, what are the disadvantages in choosing a domestic partnership over marriage?

  • Because RDPs are not federally recognized, they are unable to take advantage of over 1130 rights and benefits afforded exclusively to married couples.
  • RDPs are frequently looked down upon and do not receive the same honor, respect and privileges as married couples.
  • In an emergency, RDPs may not be permitted to make important medical decisions for their incapable partners.
  • Since the federal government does not recognize RDPs, they would not be provided the same tax benefits as legally married couples.
  • A court order regarding support for a current/former domestic partner is not recognized federally like one for a current/former marriage mate is.

The Law Office of Thomas Hogan is a family law specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help. Call (209) 214-6600 to speak with our Modesto California Attorneys.

How the IRS Taxes Cannabis Businesses

Written on:

Cannabis is now legal for medical use in 26 states and recreational use in eight. In 1991, 78% of Americans opposed marijuana legalization. A national poll conducted in February 2017 by Quinnipiac University finds 59 percent of adults surveyed favored the legalization of marijuana use in the United States, and 93 percent supported allowing adults to legally use medical marijuana if their doctor prescribes it. This support is growing yearly, even monthly. The marijuana industry seems to be booming, but business owners may disagree. Even if state law permits sale, federal law does not. However, I.R.C. §61(a) does not differentiate between income from legal sources and income from illegal sources. Therefore, marijuana businesses are still required to pay federal income tax on taxable income.

Although I.R.C. §162 allows businesses to deduct ordinary and necessary expenses such as wages, rent, supplies, etc., businesses trafficking marijuana are excluded due to I.R.C. §280E. This code states that no deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business consists of trafficking in controlled substances. Marijuana used for any purpose is a controlled substance. Therefore, marijuana businesses are required to report all income while, at the same time, restricted to deduct the aforementioned ordinary and necessary expenses.

One provision available for marijuana businesses is to deduct cost of goods sold (COGS). These are costs directly related to the production of goods. This would include the cost of the marijuana itself, the means to transport it, etc. On January 23, 2015, the IRS released a memorandum to clarify how marijuana businesses are to determine COGS. Under I.R.C. §263A, certain costs associated with purchasing, handling and storage are not eligible for deduction. See the specific guidelines on cannabis tax laws.

The Law Office of Thomas Hogan is a Cannabis Tax Law Specialist in Modesto, California. We are prepared to help in your time of need. Feel free to contact our Modesto California Attorneys at (209) 214-6600.

Everyone has an estate. Your estate consists of everything you own – your home, car, personal possessions, bank accounts and any other assets. Because you are unable to keep these things forever, it is important to ensure they are allocated to the people and/or organizations of your choosing. This requires providing instructions stating whom you want to receive any assets, what they are to receive and when they are to receive it. That is the definition of estate planning.

Though estate planning may sound feasible for most people to do themselves, assistance from an attorney is recommended in order to assure costly mistakes are avoided. Knowing that your family’s future is secure will also help you have peace of mind.

Most people use a will to list how they would like their assets distributed. While this is a great start in estate planning, certain financial assets such as IRAs and 401(k)s may require additional documentation. Once you have taken an inventory of all of your financial assets, it is recommended to ask your attorney to help you obtain and complete the necessary documents.

It is also important to remember that an estate plan or will may need to be updated from time to time. Significant life events such as moving, the birth of a child, divorce or even acquiring an inheritance may trigger the need for changes to be made to an existing estate plan. Amended state and federal laws may also bring about the need to amend an estate plan. It is imperative to occasionally review your plan and keep it current.

In the case that a person becomes ill or disabled, it is important to include an advanced healthcare directive or durable power of attorney in the estate plan. If the situation arises that you are unable to communicate your healthcare wishes yourself, an advance healthcare directive will communicate them for you. A durable power of attorney allows another person to make medical and financial decisions in the event you are not able to so yourself. Including these documents in your estate plan will ensure your personal decisions in these matters are clearly outlined and respected.

The Law Office of Thomas Hogan is an Estate Planning specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with Wills or Estate Planning in Modesto CA. Call (209) 214-6600 to speak with our Modesto California Attorneys.

Filing an Amended Income Tax Return

Written on:

National Tax Day has come and gone, but tax season is far from over. Now is the time when taxpayers realize they may have missed an important credit or deduction, or worse, failed to report a source of income when they originally filed their income tax return. Don’t worry. Amending a federal income tax return is more common than you may think.

In order to make changes to a tax return that has already been filed, you must file an amended return using a 1040X Form. This form is used to correct previously filed Forms 1040, 1040A or 1040EZ. An amended return must be filed within three years from the date you filed your original return or within two years from the date you paid the tax, whichever is later.

It is not necessary to file an amended return if you forgot to attach W-2s, schedules or other tax forms. The IRS will send a letter requesting these items later. They will also correct simple math errors you may have made, so there is no need to make the corrections and file again.

The Law Office of Thomas Hogan is a tax specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with filing an amended return or any other issues with the IRS. Call (209) 214-6600 to speak with our Modesto California Attorneys.

For those who have little or no money for attorney fees, or have run out of funds to pay attorney fees, a solution for the attorneys and the client, where the client has equity in a community residence, a family law attorney’s real property lien (FLARPL).

Pursuant to Family Code 2033, either party may lien his or her interest in community real property to pay reasonable attorney fees. The lien attaches only to the encumbering party’s interest in the community real property and is voidable and unenforceable to the extent it encumbers a nonconsenting spouse’s interest.

parental rights and liabilityWhat attorneys must keep in mind and the client as well, is that in order to enforce the lien certain procedures must be followed. Notice of the lien must be personally served on the other party or his or her attorney of record at least 15 days before recordation of the encumbrance. The notice must contain a full description of the property; the encumbering party’s belief as to fair market value; encumbrances on the property; list of community assets and liabilities (PDD’s); the amount of the family law attorney’s lien.

The other party has a right to object by an ex parte motion. The court may deny the family law attorney’s real property lien based on a finding the encumbrance would likely result in an unequal division of property because it would impair the encumbering party’s ability to meet his or her fair share of the community obligations or would otherwise be unjust under the circumstances.

New Form: Revocable Transfer on Death Deed

Written on:

Wrongful Death| Personal Injury| Thomas Hogan Law OfficeA new form of statutory deed entitled Revocable Transfer on Death Deed (TOD) has been established by the legislature. A TOD deed is a non-probate deed whereby the homeowner may deed his or her home to a name beneficiary and the transfer becomes operative on the homeowner’s death, but will remain revocable until he or she dies.

Why is this of importance to seniors? The TOD was created to allow single seniors or widows to escape probate without the need to draft a trust. Some parents add their children on the deed to the home as joint tenants for the sole purpose of avoiding probate. The problem with doing this is that the children immediately own part of the house, which may subject the house to the children’s creditors.

The beneficiary of a TOD effectuates the transfer when the homeowner dies by recording an affidavit of the transferor’s death certificate and also notifies Medi-Cal of the death.

This new law tries to combat elderly financial abuse by adding a 120 day rule and revocability of the deed. So that if you find out that Mother has transferred her home to her new boyfriend using a TOD deed and Mother is alive, you can simply have mom revoke it. But is mom is dead, you have 120 days to file a lawsuit against the boyfriend and record a lis pendens on the property so that new boyfriend is not able to sell the home.

One catch, If the beneficiary listed on the TOD deed dies before the granter, then the TOD deed is worthless and the property would be probated.

Also, one of the major disadvantages of the TOD deed is that the home will be subject to Medi-Cal recovery. While the legislature intended this new law to help low income seniors who can not afford to pay the legal fees required to draft estate planning documents, it is the low income seniors who are most likely to use Medi-Cal and perhaps lose their homes to a Medi-Cal lien.

As to married people, the best way to avoid probate on a home is to hold title as joint tenants or community property with right of survivor.

So while the TOD deed provides a possible solution for estate planning purposes for low income seniors, it leaves them open to folks who can and will commit fraud and abuse against the elderly. So please use this tool wisely.

The Law Office of Thomas Hogan is an Estate Planning specialist who is prepared to help in your time of need. Feel free to contact us if you are in need of help with Wills, TOD, or Estate Planning in Modesto CA. Call (209) 214-6600 to speak with our Modesto California Attorneys.

Contempt in Family Law Court

Written on:

Lawyer for Child Custody Sacramento, CAIf child support or spousal support is not paid, parties often ask their attorney to being a Contempt Action. The actions themselves are not as simple as one might think. Often the result is frustrating for the petitioner as the support due is not readily paid by filing a Contempt Action.

In order to be to successful in filing for contempt(s), one must strictly adhere to rule of procedural due process and the set forth the required elements of proof. As such, there must be a valid underlying order which is clear and unambiguous and it must be in writing; the defendant or citee must have knowledge of the court order; the defendant or citee must have the ability to comply with the court order; the citee must have willfully intended to violate the order; declarations must be provided to outline the issues; the Contempt Action once filed must be personally served; the citee must be arraigned; an arraignment and plea are conducted and a trial if held is subject to strict time limitations. Specific findings must be made at trial as to the facts upon which the court finds the citee guilty of contempt. The court must make a finding that the citee had the ability to comply with the underlying order.

What happens more often than not is that the court imposes purge terms as the citee is not able to pay or has limitations on bringing the outstanding support current. This is the frustrating part for those expecting to receive support is that what is collected to due to be collected is a fraction of what is owed. So the take away, is be careful on filing contempts and to be judicious, because one may well be out attorney fees with little to show for the efforts. Family Law court, despite the wishes of one filing the contempts, will not throw a party in jail for failure to comply.

Thomas Hogan is a Family Law specialist who is prepared to help. Feel free to contact us if you are considering filing for contempt in Modesto CA. Our attorney is a Family Law Specialist in Stanislaus County and is also a licensed Certified Public Accountant (CPA). Call (209) 214-6600 to speak with our Modesto California Family Attorneys.

How Domestic Violence Affects Spousal Support?

Written on:

spousal support|Thomas Hogan Law OfficeSpouses who are seeking spousal support as well as spouses who become obligated to pay support, must keep in mind issues of domestic violence (ie any history of domestic violence between the parties or against either party’s child) is a factor under Family Code 4320 in determining spousal support.

Under Family Code 4320 a court must consider a variety of specified circumstances in making an order for spousal support. Among these is documented evidence of any history of domestic violence, as defined in Family Code 6211, between the parties or perpetrated by either party against either party’s child.

Under new legislation, even if one pleas out as “no contest”, this is considered and included as documented evidence of domestic violence.

The Law Office of Thomas Hogan in Modesto CA is here to help. Feel free to contact us if you are considering a divorce from your spouse or legal separation. Thomas P. Hogan is a Family Law Specialist in Modesto California, don’t settle for anyone when determining your rights. Call (209) 214-6600.

Marriage Annulment Sacramento, CAWe get many calls about annulment of a marriage. There has been fairly recent case authority on this matter in Ceja V Rudolph & Sletten, Inc (2013) 56 C4th 1113.   So if you want to annul your marriage only the party who believed in good faith that the marriage was valid will be declared a putative spouse, where the court will divide property only on the request of a party who the court has deemed is a putative spouse. On what constitutes a good faith belief in the validity of the marriage, one must present evidence under the subjective standard (ie duration of marriage; children; sharing property and accounts; public communication of marital status; wages of each party used for the benefit of the community).

Mutual Restraining Orders: Should you get one?

Written on:

1. Mutual Restraining Orders: Should you get one? Modeto Divorce Attorney

Restraining Orders are so common that when one is served a restraining order by their spouse, the other spouse wants to file one against the protected party (ie mutual restraining orders) as well. While this may be a knee jerk reaction, the legislature has clarified what conditions must be met before a court will grant a mutual restraining order.

Family Code 6305 provides that each party must present written evidence of abuse or domestic violence in an application for relief using judicial council forms, and that a responsive pleading to the initial restraining order does not satisfy the party’s obligation to present written evidence of abuse or domestic violence in an affirmative pleading.

So the take away is, if you want a mutual restraining order and have been served with one, you must take proactive steps using the proper forms, and can not just ask for one in responsive pleadings to what has been served.

The Law Office of Thomas Hogan is here to help. Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding domestic violence restraining orders. Thomas P. Hogan is a Family Law Specialist in Stanislaus County who is also a licensed Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call (209) 214-6600 in Modesto California.

What is a right of first refusal for childcare?

A right of first refusal, also called a right of first option for child care, is a general term for a child custody order provision which provides that if the custodial parent is unable to be with the child during their scheduled time (be it for work, school, or other engagements) that the other parent is given the option to watch the child before non-parties (like babysitters, nannies, or daycare providers) are called in.  The idea behind these types of provisions is that it is best for the child’s development to be with parents to the maximum extent possible.

The devil in the details of right of first refusal orders

As stated above, the term “right of first refusal” is a general term describing a type of order.  Without specific language regarding the purpose, intention, and limitations of how a right of first refusal should operate, an agreement that the parties “have a right of first refusal” isn’t worth the paper it’s printed on.

Common Considerations:

  1. How frequently are situations where a right of first refusal may apply going to come up?  If a schedule provides one parent with time which they are consistently unable to exercise it may be necessary to consider revising the general parenting schedule to establish a more stable routine.
  2. Is work related childcare included in the right of first refusal? A common reason that one may use childcare is so that they can go to work.  Some parties expressly exclude work related childcare from the right of first refusal so that the child can have a more consistent routine, while others want to include work related childcare needs in a right of first refusal to maximize the time the child is with a parent.  It is important to address this particular need in crafting a right of first refusal.
  3. What minimum amount of time should the custodial parent be unavailable before a right of first refusal kicks in? Viewed legalistically, a general right of first refusal without specific limitations could require one parent to call the other if they have to have someone watch the child for a quick shopping trip, requiring the parties to spend more time coordinating logistics than the amount of time the custodial parent is going to be away.  To avoid such an absurd result the language of a right of first refusal order only comes in to play if the custodial parent has to be away for several hours or more.  The minimum amount of time which is appropriate varies on each individual family and their needs.
  4. What about time with extended family? Even if a parent is unavailable during their parenting time there are a variety of good reasons they may want to have the child spend time with extended family members.  Read legalistically, a right of first refusal could be read to bar this time with extended family unless the custodial parent is present.  It’s a good idea to discuss this issue and determine what exceptions like this may apply to a right of first refusal.

The right of first refusal is such a common part of California child custody orders that the California Judicial Council added form language to an optional child custody order attachment for the courts and family law litigants to use to create a right of first refusal for childcare.  The form language reads as follows:

Right of first option of child care.  In the event either parent requires child care for (specify number) ______ hours or more while the children are in his or her custody, the other parent must be given first opportunity, with as much prior notice as possible, to care for the children before other arrangements are made.  Unless specifically agreed or ordered by the court, this order does not include regular child care needed when a parent is working.”  – FL 341(D) – Optional Additional Provisions – Physical Custody Attachment

While the judicial council form language is good and will work for many parents, it is important to ensure that the considerations above are addressed so that a right of first refusal is right for you and your unique needs.

Who is a right of first refusal good for?

Whether a right of first refusal makes sense for you depends on many factors.  My experience working with a variety of families shows that generally a right of first refusal can be successful in the following situations.

  • If the parents have a good communication skills with each other. The implementation of a right of first refusal requires regular civil communication between parents.  Of course, good communication skills do not happen by accident and can be learned, giving such an order a greater chance of success, but this order should not used for parents who are constantly arguing.
  • If one (or both) parent(s) have variable schedules. If work, school, or other constraints require one or both of the parents to be unavailable for chunks of their parenting time, making it impossible to set an exact workable schedule, a right of first refusal may be the best solution to that problem.
  • Parents who work together with flexibility and cooperation. Like many other parenting issues, being flexible and cooperative with the other parent is good for the productivity of the co-parenting relationship and is good for the children involved.  Parents who do this well in practice (but who may need a little help establishing general guidelines on how to do so) can often benefit from a right of first refusal.

Who is a right of first refusal not good for?

Experience also shows that there are some for which a right of first refusal would not be a good idea and may even make a difficult situation worse.

  • If there is a history of domestic violence between the parties (whether or not a restraining order is in effect) a right of first refusal may cause more harm than good as it requires a high level of communication with the other parent.
  • If one parent’s time is limited to supervised visitation a right of first refusal would not be consistent with the child’s best interests.
  • If the parents do not communicate well a right of first refusal will likely not operate well in practice.
  • If one or both parents are inclined to legalistic behaviors and interpretations of court orders regardless of how that impacts the children, such an order may lead to disputes.
  • If the parents do not live close to each other, for practical reasons.

For assistance in determining whether a right of first refusal is workable for you and your needs please contact our office to schedule a consultation with one of our experienced child custody attorneys.

In the start of a family law case with minor children, the parties often devote much attention to establishing an amount for child support.  In almost all cases when parents separate the court will institute an amount of support payable by one part to the other for the parties’ children.  This ordered support continues until support is modified by the court or terminated by law.  This article addresses those circumstances which give rise to the termination of child support and circumstances which may allow it to continue into adulthood.

Termination of Child Support

As a matter of law there are certain conditions which terminate an obligation to provide support for a child.  Generally child support will end when:

  1. The child dies.
  2. The child is emancipated.
  3. The child gets married.
  4. The child is adopted terminating the parental rights of the supporting parent.
  5. The child reaches the age of 18 and is no longer a full time high school student.
  6. The child reaches age 19 (regardless of whether the child is still in high school or not).

Absent certain exceptional circumstances if one of the terminating conditions listed above occurs, child support terminates as an operation of law.  After such happens the parent receiving support is obligated to notify the parent paying support and is obligated to refund any support paid after support obligation terminates.

Child Support into adulthood

The court can in certain circumstances, as listed below, order that support for a child continues into adulthood.  However, if these circumstances do not exist the court lacks the authority to continue child support.

Support to pay for colleges

While some states have instituted laws that require parents to chip in for their adult child’s college education, California has not done so.  The court cannot order a parent to contribute to an adult child’s college expenses over that parent’s objection.  However, the parents can agree to pay for a child’s college education, whether informally or as a court order, and if made into a court order the court can enforce that agreement according to its terms.  Absent such an agreement, a court order to pay for an adult child’s college education expenses is invalid and is beyond the court’s authority.

Support for adult disabled children

Family code 3910(a) creates an obligation for a parent to support “a child of whatever age who is incapacitated from earning a living and without sufficient means”.  The courts have generally imposed a support obligation under this statute when the facts or circumstances indicate that the child has a physical or mental disability which prevents them from being able to work if they chose to do so.  In cases where a now adult child has such a disability a careful examination of the facts is needed to determine the child’s vocational interests and their ability to work (whether with or without accommodations).   Cases dealing with support for adult children who may be disabled are incredibly complicated and fact specific and should not be undertaken without legal assistance.

If you have any questions regarding child support and its termination please contact our office and set up a time to meet with our attorneys.

What Is an “Offer In Compromise”?

Written on:

If you have already spoken with an attorney and determined that bankruptcy will not discharge all of your tax debt, and an installment agreement is not a feasible way to satisfy your remaining tax debt, then you will want to try to make an Offer In Compromise to the IRS.

What Is an “Offer In Compromise”

An offer in compromise is an agreement between you (the taxpayer) and the IRS that settles a tax debt for less than the amount owed.  Like bankruptcy, it gives the eligible taxpayer a chance to satisfy their tax debt and get a “fresh start” with respect to the tax debt.

Why Would the IRS Accept Less than What Is Owed?

When a troubled taxpayer prioritizes between buying food, paying the mortgage or paying taxes – taxes often got the short shrift.   Nonetheless, that tax debt continues and continues to grow.

Three tax consequences often accompany an economic downturn and rapid changes in asset ownership and/or income, and these consequences also form the bases for the IRS accepting an offer in compromise:

  1. Doubt as to collectability
  2. Doubt as to liability
  3. Effective tax administration

Doubt as to Collectability:  If taxpayer’s assets and income are less than the full amount of the tax liability, then the IRS has doubt as to collect-ability, and is authorized to negotiate and accept an offer in.

Doubt as to Liability:  Rapid economic change comes with chaos, and tracking income and tax liability across a shifting economic landscape is not easily accomplished.  As a result, a genuine doubt as to tax liability can result.   Here again, the IRS is authorized to investigate and accept an offer in compromise when there is doubt as to liability.

Effective Tax Administration:  This last basis for accepting an offer in compromise takes more of a public policy perspective on the tax administration process, and determines whether the taxpayer would suffer “economic hardship” or whether accepting a compromise would promote effective tax administration where the taxpayer provides a “compelling public policy or equity consideration” to support such compromise.

“Economic hardship” is a legitimate basis for an offer in compromise where the taxpayer can show that although full collection of tax debt could be achieved, it would cause the taxpayer “economic hardship” as specified in the Treasury regulations.

“Compelling public policy or equity considerations” require the taxpayer to demonstrate exceptional circumstances which render the collection of the full tax liability as an act that undermines the public confidence that the tax laws are being administered in a fair and equitable manner.

These are the reasons why the IRS might accept an offer in compromise, but a taxpayer must do his or her due diligence before being eligible to submit such an offer.

Are you eligible to submit an offer in compromise?

If you wish to submit your offer in compromise, you must first:

  1. File all tax returns you are legally required to file;
  2. Make all required estimated payments for the current year; and
  3. Make all required federal tax deposits for the current quarter if you are a business owner with employees.

Note – If you are in an open bankruptcy case, then you are not eligible to submit an offer in compromise.  You must first address the pre-petition tax debt through the bankruptcy case, and thereafter address any outstanding tax debt once the bankruptcy case closes.

It is important to be aware of this partial list of concerns when submitting an offer:

  1. Penalties and interest will continue to accrue during the offer evaluation process.
  2. Besides the continuing penalties and interest, the IRS can also file a Notice of Federal Tax Lien during the Offer investigation; however, unless a jeopardy situation exists, a request for a Tax Lien will not usually be made until after the final determination has been rendered.
  3. You cannot make an offer that is only for a tax year or tax period that has not been assessed.
  4. Any tax refunds or money from a levy served prior to you submitting an offer, will be applied to the tax liability.
  5. Any payments made with an offer or during the course of the offer investigation will be applied to your tax liability, whether the offer is accepted or not.
  6. If your offer is accepted, you must continue to file and pay your future tax obligations as they become due for the next 5 years.  If you fail to do so, your offer may be defaulted and the compromised tax debts, including penalties and interest will be reinstated.

Making the Offer:

There is an application fee of $150 required when submitting your offer.  However, this fee can be waived for individuals meeting the Low Income Certification guidelines.  If the fee is not waived, it will not be returned to the taxpayer, but will be applied to the tax liability.

The Offer in Compromise can be made in a couple different ways:

  1. Lump Sum Cash:  requires that 20% of the total offer amount be paid at the same time the offer is submitted.  The remainder will be paid within 24 months in accordance with the offer terms.
  2. Periodic Payment:  requires that the taxpayer make an initial payment with the offer, and then make continuous payments on the remaining balance over a period of not more than 24 months in accordance with the proposed terms of the offer.

This is a good stopping point.  The general benefits and considerations of the Offer In Compromise have been laid out.  But making an offer in compromise is a complicated undertaking, and there are IRS forms to be completed and supporting documents to be gathered.  You should become very familiar with the IRS website or obtain the services of a tax professional when getting ready to make an offer in compromise; but be leery of fly-by-night tax outfits.  Obtaining the services of an experienced and knowledgeable attorney is a smart choice.

Personal Income Tax Debt: Can Bankruptcy Help?

Written on:

No creditor knocks quite as loudly as the Internal Revenue Service when they come to collect.  The consequences of not timely paying your personal  income tax debt can result in the seizure of your personal property, levying of your bank accounts, garnishment of your wages , and/or foreclosure of real property.

You may be considering bankruptcy as a way to discharge your personal income tax liability, but before you rely too heavily on bankruptcy to discharge that tax debt completely, you need to ask yourself some important questions to determine what portion of your tax debt can be discharged.

Rather than listing what tax debt is dischargeable, it is more efficient to identify which income tax debt is not dischargeable:

  1. Priority income tax debt is not dischargeable.  Several types of this non-dischargeable tax is identified in bankruptcy code section 507(a)(8)(A).  Priority status of tax debt often relies heavily on timing, and includes:
  • Taxes for which a return, if required, is last due, including extensions, on a date more than 3 years before the date that the bankruptcy case was filed.For example,  if Mary Smith filed bankruptcy on July 4, 2015 and she listed tax debt for tax years 2010, 2011, and 2012.  If no tax filing extensions were obtained, then the 2010 and 2011 tax debts would be dischargeable in Mary’s bankruptcy case because those tax returns were due by April 15 of the following year: i.e.  2010 tax return due by April 15, 2011 and 2011 tax return due by April 15, 2012.  Because April 15, 2012 is the latest date that either of these returns was due,  and that date is more than 3 years before the date that the bankruptcy case was filed, then the 2010 and 2011 tax debt is dischargeble.  

Now consider that Mary received an extension until October 2012 to file her 2011 tax return.  As a result of the extension, the last date the 2011 return is due is less  than 3 years from the filing date of the bankruptcy case. Consequently, the 2011 income tax debt is no longer dischargeable in the bankruptcy case.   The 2012 income tax was due by April 15, 2013 and was never eligible for discharge in a bankruptcy case filed on July 4, 2015.

  • Priority debt also includes any tax assessed within 240 days before the filing date of the bankruptcy case, exclusive of-
  • Any time during which an offer in compromise with respect to that tax was pending or in effect during that 240 day period, plus 30 days; and
  • Any time during which a stay of proceedings against collections and arising out of an earlier bankruptcy filing was in effect during that 240 day period, plus 90 days.
  • Tax debt is not dischargeable in bankruptcy for tax years for which:
  • returns were never filed;

Note – late filed returns should be reviewed thoroughly with an attorney to determine the circumstances and timing, and whether that tax is likely to be deemed dischargeable.

  1. Tax debt is not dischargeable with respect to returns in which the debtor fraudulently filed a return or willfully attempted in any manner to evade or defeat such tax.

It is tempting to believe that any tax debt not described here as non-dischargeable is therefore dischargeable, but this conclusion will not always be true.  Always seek legal advice when you need greater clarity regarding your specific circumstances, and especially when the amounts at issue are large.

Wage Garnishments: What can be done?

Written on:

A wage garnishment is the most common type of garnishment. It is the process of removing money from an employee’s monetary compensation­ it can also includes a garnishment on 1099 income.

Garnishments are the result of a court order, abstract or judgment or lien for an outstanding balance to a creditor and the wage garnishment will proceed until the debt is paid in full or alternative arrangements are made to pay off debt.

Like most creditors, the IRS has the authority to garnish your wages for outstanding taxes owed. But, not to panic, there are many solutions that can take care of your wage garnishments. Below are top 3 ways to handle wage garnishments for tax debts that you owe.

  1. Setting up a payment plan to pay the taxes owed over a period of time; while writing a check in full to the IRS is most ideal, many cannot afford to pay all at once, which is understandable, making payments is much more affordable and possible and the installment agreement is based on your financial ability to pay – if you are going through a hardship, the IRS may even deem your account as noncollectable for up to a year which means your wage garnishment would stop and they would hold off on collections until your financial situation improves.
  2. If you do not show an ability to make monthly payments an OIC may be an option, known as an Offer in Compromise (OIC); we review your financial situation to determine if an OIC is possible and in your best interests.
  3. Filing for bankruptcy is also an option­ our office would review your liabilities to see if a bankruptcy filing could alleviate your tax liabilities. The bankruptcy filing would immediately stop the wage garnishment and give you breathing room in order to be able to set a payment plan after the bankruptcy case is discharged.

While a wage garnishment may seem overwhelming and impossible to overcome, there are actually many options that our office can offer to help deal with outstanding tax debts. The Law Offices of Thomas P. Hogan works with the IRS every day on behalf of our clients to resolve issues that seem overwhelming and impossible. We work hard for our clients to provide the best possible service and optimum results. Our group of lawyers and experts will make sure that your tax issues are taken care of in a timely matter in order to get you back on track and out from under the oppressive burden of back taxes.

Q: Do I need to name a legal guardian for my children?

A: As parents, we would do anything to protect our children. We buy the best and safest car seat, the best strollers, we make sure they attend the best schools and receive the best education possible. But what if something happens to you? Have you done what you need to do to protect your children? Have you made plans to best prepare your children for a future without you? No parent wants to think about not being around to raise their children. I get it. It’s a scary thought. But what is scarier, is NOT thinking about it. If you do not decide proactively what will happen to your children if anything happens to you, a court will decide for you. The problem with that is the court doesn’t know your children. While the judge is obligated to consider the best interests of your child when appointing a legal guardian, the judge won’t know your children like you do.

As a parent, I want to be the one to decide who will raise my children if I cannot. I have worked hard to raise my children a certain way. Naming a legal guardian ensures that your children are raised by the person you want, in the way you want. When you name a legal guardian, you take the control into your own hands. You name the person/couple you trust, love and know would care for your children the way you want your children to be raised. You get to choose the guardian with whom your children have a close relationship, a guardian who has a similar parenting philosophy, similar moral and values, similar religious beliefs and a similar discipline style as you.

I have clients who tell me they know exactly what would happen to their children… “My sister (mother, brother, etc.) would raise my kids.” However, they do not have legal documentation in place to ensure their sister (mother, brother, etc.) would become their children’s legal guardian. The truth is, unless you have legal documentation in place, you don’t know who would raise your children if anything happens to you. That is why, if you have minor children at home, you need to have legal documentation in place naming a legal guardian to raise your children if anything happens to you.

Naming a guardian for your children can also help alleviate unnecessary confusion and conflict that could result if more than one family member petitions the court to become guardian of your children.

This is not an uncommon issue. This is what happened to the Barber Family. The Barbers were a young family from Southern California with three sons. The Barbers took their family on a road trip to Arizona and were involved in a fatal car accident. The parents passed away and all three children survived. They were placed in foster care until a relative came to get them. What happened next could have been avoided if the Barbers had taken the time to name a legal guardian for their children. More than one family member petitioned the court for guardianship of the boys. The family fought for months over what the parents would have wanted for their boys. Accusations were made, nine attorneys were retained and many thousands of dollars were spent fighting in court. In the end, the court made a decision to place the boys with one family member. However, by this time, damage had already been done, relationships were strained and the boys missed out on relationships with their extended family.

While the court did make a decision, we still don’t know what the parents would have wanted because they did not name guardians for their boys. What I can imagine is that the Barbers did not want their familial relationships torn apart fighting over who would be named legal guardian for their boys. This is one of the biggest personal risks we face when we do not take the time to name legal guardians for our children.

If you have minor children at home, it is imperative you take the time to legally document who you would want to be the guardian of your minor children if anything happens to you. If you cannot decide who you would choose, we can walk you through a series of steps that will help you reach the best decision for you and your children. It is not easy to make these decisions and they should not be made on your own. It is important to have good legal guidance. Contact an attorney in our office to help guide you through the process, answer all of your questions, help you consider all of your options and to help avoid harm in the future.

Parties who are filing or responding to a petition for dissolution of marriage will quickly come across a section for them to state their “date of separation” on the court’s pleading forms.  The question for almost all parties then immediately becomes, when did we separate? And why does the court need to know?  Why does this matter?

Why does date of separation matter?

The date of separation is important in California divorces for two main reasons:

  1. Property Division:  California law provides that generally property which is acquired by either spouse after the date of separation is the separate property of that spouse, which is 100% theirs.  This can include salaries, real property, personal property, accumulation of retirement benefits, as well as other property items.  While there are major complications which can arise in determining whether an item was received fully from a party’s separate property, in general the date of separation can have a significant impact on how the parties’ property is divided.
  2. Spousal Support: One of the biggest factors that the court considers in setting the duration and amount of spousal support is the length of the parties’ marriage.  Generally, the longer the parties are married the longer the spousal support will last (and potentially the higher it will be).  So, a choice between two different dates of separation can have a major impact on the support rights and obligations of the parties.

How does the court determine our date of separation?

Determining the exact dates that parties did in fact separate is a question that has perplexed the courts throughout the years and has led to inconsistent decisions.  For some parties there is no dispute and the separation is clear.  For example, if a husband and wife decide to live in separate residences on January 1st and the husband moves out that same day to his own apartment with the wife staying the marital home, January 1st is their separation date.  For other couples with multiple move-ins and move-outs, ongoing financial ties, and other ongoing joint activities the question of a date of separation can be even more complicated.  A third common category of couples may live under the same roof but separate their finances, schedules, and activities and live together as “roommates”.   What is the court looking for in deciding when the parties separated?  Is it about parties emotional connection? Physical intimacy?  Their living situation?

In 2015 the California Supreme Court weighed in on the issue of the parties’ date of separation for the first time.  In the case In Re Marriage of Davis the Supreme Court established that for parties to be separated they must be living in separate residences.  In essence, parties are not separated until they no longer live under the same roof.  However, the court also recognized the reality that parties may live in the same household and still be separated in certain exceptional circumstances, but did not elaborate on what those circumstances could be.   This caveat, buried in a footnote in the court’s opinion, leaves the door open for this rule to change in the future.  As it stands now though, parties must first and foremost be living in separate residences to establish their separation.

Other older cases make clear that parties can still be married (unseparated) even though they do not live in the same residence.  In essence it is not enough for the parties to live in different residences; the parties’ conduct and the circumstances of their marriage may refute a finding that they are separated.  The best example of this comes from the case Marriage of Baragry, where the husband lived with his girlfriend/employee in his own apartment, but often went home to his wife and children to enjoy her home cooked meals, have her do his laundry, and otherwise maintained ongoing ties with his wife while living with his girlfriend.  The court refused to allow the husband to claim that they separated when he first moved out in light of the benefits husband continued to receive due to his ongoing relationship with his wife, even though he didn’t actually “live” there.  Essentially, the court will not allow parties to have it both ways.

The cases on date of separation are complicated and at times contradictory.  As discussed above, this issue can be critical and can have a substantial impact on the rights of the parties.  If you have questions about the date of separation in your case and the best approach to take, it is important that you contact one of our attorneys to guide you through this process.

For many divorcing couples, what will happen with a house after the divorce is a critical concern for both spouses.   These concerns only increase when title to the house is only in one of the spouse’s name.  For the spouse who is not on the deed, it is important to take steps to protect their interest in the house to prevent the other spouse from borrowing against, selling, or losing the house to foreclosure prior to a final Judgment.

One of the best tools a spouse can use to protect their interests in a house that titled in the other spouses’ name is to file and record a “Notice of Pendency of Action” against the house.  This document becomes a public record, which when properly drafted and recorded gives notice to the other spouse, and anyone else that there are pending court proceedings regarding this house.  With this notice, the other spouse will not be able to effectively sell the house to a third party.  This notice will come up on any title search and will be flagged to the attention of any buyer of a house or any bank who might lend funds to purchase the house.  It also provides a mechanism for you to be notified about important occurrences with the house, such as default and foreclosure, allowing you to step in and take other actions to protect your interests.  Also, this Notice of Pendency of Action may work to prevent a party from borrowing against the equity in their house during the divorce, either through a home equity line of credit or a Family Law Attorney’s Real Property Lien.

The Notice of Pendency of Action is a tool which can be used in conjunction with the Standard Family Law Restraining Orders to prevent one spouse from taking actions to unilaterally undermine the other spouse’s interest in a property item away during a pending family law proceeding.   Use of the notice of pendency of action gives additional “teeth” to the Standard Family Law Restraining Orders and allows for additional remedies which you may not have been able to use otherwise.

The Notice of Pendency of Action is a valuable tool and should be used carefully and properly.  This document puts a “cloud” on title and once the family law proceeding is finished needs to be removed to avoid future hardship for both parties.  Further, there are circumstances when the court can remove the Notice of Pendency of Action from the house.

A final related note, it is important to remember that in California community property law that whose name is on a house is not the final determinative issue in deciding who gets the asset and whether the other spouse has to be “bought out” from the house.  Rather, there are multiple ways in which the spouse not on title can claim an interest, including seeking a determination that the asset is community property in spite of its title, seeking a percentage of the house under a Moore/Marsden theory, or requesting reimbursement for expenses paid towards another spouse’s separate property home.   Therefore, it is important to consult with an experienced family law attorney to discuss the use of this tool and what interest, if any, you may have in a house in the other spouse’s name.

One of the most pressing concerns for any parent going through a divorce, legal separation, or break up is what will happen with the children.  Even in the most amicable of breakups numerous new challenges arise, including changes in housing, finances, scheduling, work, and many other areas of life, all of which must be considered and addressed to create a parenting plan in the children’s best interest.  In more contentious breakups there may be additional serious issues present such as neglect, abuse, addiction, as well as other serious concerns.

California Family Code §3170 requires that in any contested custody case that the parties first participate in mediation to attempt to resolve custody disputes with an agreement before the issues are tried in front of a judge.   This requirement is imposed under the belief that an agreement which the parties come up with themselves for their children is usually better and will be more successful in the long term than one imposed by the courts.  To assist the parties in working through these various difficult issues the mediation is conducted with the assistance of highly trained therapists who are familiar with the common issues that need to be addressed in custody disputes.

In some counties, commonly referred to as “recommending” counties the mediator has an additional role when the parties are unable to reach an agreement.  In these counties the mediator will present a written recommendation to the court regarding a parenting plan for the minor children.  In these counties the mediation process has increased significance as the mediator’s recommendations are often adopted in whole or in large part by the court.  Many local counties, including Sacramento, Placer, Yolo, San Joaquin, and Stanislaus counties are recommending counties.  In other counties, the mediation process is entirely confidential and the mediator does not make recommendations to the judge if the parties are unable to reach an agreement.

All courts in California have an office called Family Court Services to provide mediation services to the parties in contested custody cases.  Most custody mediation is handled through these court offices that provide their mediation services at no cost to the parties.   As an alternative parties may request (either with an agreement or without) that the parties be referred to private Child Custody Recommending Counseling (CCRC) to assist parties in resolving contested custody issues and if needed, to investigate and prepare a recommendation to the court regarding custody.   This counseling is done by an experienced therapist within special training dealing with contested custody issues.  The expense of the private CCRC is paid by the parties, usually with the party who requested it advancing or paying 100% of the cost upfront with the court reserving the ability to divide the cost between the parties at a later date.  Due to limited resources in the office of Family Court Services, most mediation sessions last between 15 minutes to one hour, whereas when the case is set for private CCRC the parties will spend multiple hours with the counselor who will also invest time outside of these meetings investigating and preparing recommendations.  While it is not necessary or affordable for parties in all cases, private CCRC provides a valuable service to resolve difficult custody disputes.

If you are facing decisions regarding custody issues it is important that you contact an experience family law attorney who can advise you regarding your options and strategies to obtain a custody order in your children’s best interests.

The fundamental purpose of child support in California is to ensure that the needs of children are provided for.  Under California law each parent has an obligation to financially support their children (Family Code §4053(b)).  Practically, the state has adopted a uniform guideline formula to calculate the amount of support that should be paid keeping in mind each parent’s obligation to support their child.  Simply speaking, the guideline formula calculates support based upon each parent’s income and the amount of time each parent has with her child.

To ensure that a child is supported, in the appropriate case the court may count a new spouse’s income in calculating support.  However, under the law a new spouses’ income should not be considered except in an extraordinary case (Family Code §4057.5(a)(1)).  The family code lists examples of these extraordinary cases, including when a parent “voluntarily or intentionally quits work or reduces income” or when a parent “intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income” (Family Code §4057.5(b)).  The law recognizes that in this case it is appropriate to use a new spouse’s income to calculate support so that the entire burden for supporting a child does not fall on the parent who is still working.  (Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384, fn. 5).

It is important that if you are facing these issues that you contact an experienced family law attorney to ensure that child support is set in an amount that is fair and proper.

On October 4, 2013 Governor Jerry Brown signed into law Senate Bill 274 which enacted new statutory amendments to clarify that a child may have more than two parents in the appropriate circumstance.  This means that in certain circumstances more than two parties can have the rights to custody and visitation of a minor child, and that more than two parents may have the obligation to support a child.

The new law provides that a child may be found to have more than two parents if it would be detrimental to the child to recognize only two parents.  To determine whether there would be detriment to a child in this circumstance the court is called to consider various factors including whether a proposed third parent has met the physical needs of that child, whether they have met the psychological needs of a child for care and affection, and how long they have assumed that role, among other factors.

In addition to showing that there would be detriment to the child if there are only two parents, one of several existing statutory grounds to establish paternity will have to be proven as to the non-biological parent.  Some examples of these methods of establishing paternity are (1) being married to the mother of the child, (2) attempting to marry the mother of the child before or after the child’s birth, (3) or receiving that child into their home and holding it out as their own.

Demonstrating to a court that these facts exist can be complicated and may require expert testimony from child psychologists or other child custody professionals and will often have to be resolved with a trial or evidentiary hearing.  It is important if you are facing these complicated issues that you consult with a family law attorney right away to assist you in navigating these very tricky claims.

A common situation that comes up during a dissolution matter is dividing the equity in a house that was owned by one spouse prior to marriage. In most cases the non-owning spouse is entitled to receive a portion of the equity in the house. The general rule in California dissolutions is that all community property (property from the marriage) is to be divided equally. The complication in this situation is that at part of the loan was paid outside of the marriage and part was paid during the marriage. To make matters even more complicated, the value of homes generally fluctuate constantly throughout the parties marriage and the divorce process.

 

Two California cases (In Re Marriage of Moore and In Re Marriage of Marsden) have established a method for dealing with these issues. Simply put, the portion of the equity of the house which came from the marriage will be split equally and the portion of equity from before or after marriage belongs to the spouse who owns the property. To determine the correct apportionment of these two, the courts look to the value and loan balance at four different dates: (1) Date of Purchase, (2) Date of Marriage, (3) Date of Separation, and (4) Date of Trial. With this information correct percentage and values owed to each spouse can be determined.

 

Generally, the assistance of a real estate appraiser is required to determine these values. Further, close examination of the loan documentation is also required. If the house has been re-financed at any point in time, additional information and documentation has to be reviewed. In many cases, the parties can hire an agreed appraiser to determine these values and can agree to a fair buyout amount. In other cases the value may be contested and it may be necessary to have the court decide this value. Either way, it is important when dealing with this issue to contact a skilled attorney to assist you in navigating this complicated claim. You may contact our office to discuss this issue further with one of our attorneys.

Bankruptcy Concerns

Written on:

It is not uncommon for potential bankruptcy clients to come in for a consultation with their own pre-conceived ideas that are not always fact.  It is always our goal to get these concerns out in the open so we can try and relieve some of the burden  and get down to the facts. Below I have listed a few of the most widely held concerns that I have been asked about:

1)      That once a bankruptcy is filed, I can not keep any assets- that the home, cars and dog will have to go- this is not the case- actually, in most cases, we are able to protect all of the clients property and all of the debt is wiped out in the bankruptcy filing.

2)      That once a bankruptcy filing takes place that they will not be able to get any credit for next 7-10 years- not true- in many cases, once the bankruptcy has been completed and the debt discharged, most individuals receive offers of new credit right away- low balances to start, but generally decent interest rates- this allows individuals the ability to begin rebuilding their credit right away.

3)      That once a bankruptcy is filed, I can not keep my financed home or car(s)- also not true- as long as your payments are current on your financed assets,  you can keep them and continue to pay the lenders- this will allow the individual to continue rebuilding their credit post bankruptcy.

4)      That once a bankruptcy is filed, I will not be able to buy a house for 7-10 years- not true- it is a common rule of thumb that once a bankruptcy has been discharged, after two years, individuals would be eligible for FHA insured loans with competitive interest rates.

5)      That if an individual is married, they can only file bankruptcy if their spouse files- this is also not true- individuals have the right to file a bankruptcy singly even if they are married- community assets held by the married couple must be considered in the bankruptcy filing to ensure the assets are protected and then the individual can achieve debt relief. It is , in most cases, best to file jointly, but it possible for married individuals to file singly.

It is our goal at the Law Office of Thomas Hogan to get all the facts and concerns from our potential clients and do our very best to put them at ease during this difficult time- no one ever wants to have to proceed with a Bankruptcy filing, but in some cases it may very well be the best decision for getting a clean start.

How is child support calculated?

Written on:

This is a question I receive on a daily basis during my family law consultations. The quick and short answer is: child support is based on income and timeshare. For those individuals that have been through the child support process before, they understand the phrase “income and time” basically sum it up. However, for individuals that are new to this process there is a long answer. The long answer is that the court uses a program called a Dissomaster whereby the court takes each of the party’s incomes minus deductions, the number of children and the time spent by the noncustodial parent with each child, and plugs those numbers into the Dissomaster spreadsheet. The program then provides a support number to be paid for each child relevant to the current matter.

First, let us start with income. The court is going to look at both parties year to date gross income. If it the beginning of the year, the court will also wish to look at both parties most recent tax returns and W2 or 1099. Most individuals question the court using their gross income stating, “but that isn’t really what I make.” This is true and the program the court uses to calculate support (Dissomaster) will figure out what your net income is after taxes and other deductions. The court can also include overtime income, especially if it consistent overtime.

Second, the court will want to know if either party has any relevant deductions. The most basic deductions include: union dues, medical insurance and mandatory retirement. With regards to mandatory retirement, this does not include a 401K or other elective retirement plans. Rather, this is a deduction if your employer requires you to pay into a retirement plan. A good example of this is CalPERS or CalSTRS. Other deductions include child support or spousal support paid to another individual that is court ordered. Paying someone else for child support that is not court ordered will not normally stand up at a deduction. The reason for this is the individual paying the voluntary support could stop paying at any time. Necessary work related expenses can be included as a deduction. The court will want to see copies of receipts for these expenses if an individual wishes to use this as a deduction. Finally, the court will look to see if there are any travel expenses for the noncustodial parent to have visitation with the minor child. If the expenses require hotel rooms or flights, that are not required by the other party also, then those expenses can be considered a deduction by the court.

Third, the court will look to the timeshare the noncustodial parent has with the child. If the parties have an equal timeshare, then an allocation of 50% will be given to each parent. To calculate timeshare, the court will look to which days the noncustodial parent has the child, this is normally determined by a custody and visitation order already on file with the court. To give an example, a parent that has alternating weekends of Friday to Sunday has roughly a 14% timeshare. If holiday time and vacation time are included as part of the custody order that timeshare percentage will go up. If weekday visits are included in the custody order that timeshare percentage will go up.

Finally, once all of this information has been determined by the court, the information is placed into the Dissomaster spreadsheet and a child support amount is determined. This is called guideline child support. Granted there are always arguments to be made to deviate from guideline support.

Fresno, CA — The athletes from the United States who are participating at the 2012 London Olympic games are doing a hell of a good job winning the gold at various events. Most of these athletes are instant hometown heroes and people are excited to see them back on American soil and so does the IRS.

It is not common knowledge that athletes who perform at the Olympics and win medals receive an honorarium from the Olympic committees of their home countries. According to Forbes, European countries are pay huge bucks for people who bring home the gold. Italy provides the biggest medal bonus at more than $182,000. This is followed by Russia who is willing to give $135,000 to whomever brings home that golden bacon and even bronze winners get to take home $54,400. Ukraine also shells out the big money for gold medalists at $100,000, $75k for silver, and $50,000 for bronze. But unlike these nations that are generous in the pocket and are willing to shell out sums of money for the big winners, the United Kingdom can be considered quite the opposite. The host nation can be considered the worst when it comes to bonuses for its athletes because they do not pay any incentives.

Meanwhile, the United States has a more modest compensation for its top performers: $25k for gold, $15k for silver and $10k for bronze. But in America, honorariums are considered taxable income. These athletes will come back home, wave to the cheering crowd and a few lucky ones might even meet the president or be offered those deal of a lifetime endorsements but after the hoopla has died down, the IRS will come knocking at their door and hit them with more or less $9,000 worth of taxes.

For gold medal winners, Uncle Sam would probably charge $8,986 in taxes. These taxes will cover the value of the medal which roughly costs $620.80 (the medal is gilded with plated gold, minimum of 6 grams) and the $25,000 honorarium. But this tax liability figure is based on the notion that the taxpayer is paying a 35% tax rate which is applicable to people who are earning within the area of $388,350 per year. You may have won the gold medal but if you are not in the league of a Michael Phelps or Ryan Lochte who both have lucrative endorsement contracts and compete at big money-making events, you will not be hit with that much tax.

Since it is election year, politicians have blown it out of proportion and has made it into issue for debate. But some of them do have a point, the issue of the honorariums and gold medals being taxable income is quite complicated and is still a gray area when it comes to the tax code.

Sen. Marco Rubino (R-Fla.) is proposing a bill that will abolish the federal government’s imposed tax on honorariums and gold medals earned by athletes at the Olympics. According to the senator, such taxes punish those who strive to succeed. But in order to do this a loophole has to be discovered or created in the tax code that will justify why honorariums are a unique or special form of income and should not be considered as regular income in order for it to be exempted.

But everyone is jumping in on the issue right now and giving their two-cents on the issue. It is no longer simple to just bring home the bacon because Uncle Sam also wants to stick a fork on the athletes to make sure they’re done.

Roseville, CA –After 11 years of marriage which is like 50 years in Hollywood, Stevland Hardaway Judkins A.K.A Stevland Hardaway Morris or more popularly known by his showbiz name, Stevie Wonder has pulled the plug on his marriage from fashion designer Kai Millard Morris.

Stevie Wonder was on born on May 13, 1950 in Saginaw, Michigan. The third of 6 children, he was born 6 weeks premature and due to this he suffered from a condition called ROP or retinopathy of prematurity which caused his blindness shortly after birth.

He was a product of a broken home, his mother leaving his father when he was just 4 years old and taking him and his siblings to Detroit, Michigan. It is not clear if his mother formally filed for divorce or legal separation or if Stevie Wonder’s parents were legally married at all. But he did go through a name change when his mother changed his surname from Judkins to Morris based on the influence of his mother’s relatives. Morris became the legal surname of Stevie Wonder and up to this day has not modified or reverted it to his birth name.

He was discovered by Ronnie White of the The Miracles and was quickly signed by Motown mogul Berry Gordy under the company’s Tamla label and is still records and performs for the label to this day.

He’s been know for such hits as “I Wish”. “Sir Duke”, “I Just Called to Say I Love You” and “Superstition”. He has amassed 22 Grammy Awards, recorded 30 Top 10 hits in his lifetime, and according to Billboard Magazine he on 5th spot of the Hot 100 All-Time Top Artists.

He has had a prolific music career and it seems to have even spread through his personal life having several relationships and fathering several children despite his disability. He is quite the ladies’ man so to speak.

Stevie Wonder met Motown singer/songwriter Syreeta Wright in 1968 and collaborated with her on several projects, they married in 1970, the marriage lasted for 18 months and they divorced in 1972. Stevie Wonder then had a relationship with Yolanda Simmons who was his secretary in his publishing. They did not marry but she bore him a daughter in 1975 and named her Aisha Morris. His daughter was the inspiration for his song “Isn’t she lovely?” Yolanda Simmons bore him 2 more children before they separated ways. He then fathered 2 children with his ex-girlfriend Melody McCulley. In 2011, Stevie Wonder married fashion designer Kai Millard who is known in the fashion industry as Kai Milla.

It was Stevie Wonder was the one who filed for dissolution of marriage and he is being represented by celebrity disso-queen Laura Wasser who has represented clients like Kim Kardashian, Nick Lachey, Robyn Moore (Mel Gibson’s ex-wife), Mariah Carey, Angelina Jolie and Christina Aguilera to name a few. Stevie used his legal name in the petition which is Stevland Morris and instead of a signature, he validated the petition by annexing his fingerprints on the divorce documents.

Stevie and Kai have two minor children, two boys ages 10 and 7. It is not known if they had a prenuptial agreement that would safeguard Stevie’s assets. Stevie Wonder has amassed a bit of a fortune through the years owing to his continuos successful career. And in California, a marriage that lasts for more than 10 years is like getting a permanent pension plan but apparently some of their assets are separate. And Stevie Wonder seems to go through his divorce amicably by voluntary agreeing to pay child support and spousal support.

Another celebrity goes down the drain. Wonder how he broke the news to Kai did he use his popular song “I Just Called to Say I Love You”?

“I just called to say we’re over…
I just called to say that we’re through … yeah I do
I just called to say we’re over
And I mean it from the bottom of my heart.”

San Jose, CA — In the ensuing Jackson family feud that involves Michael Jackson’s siblings attempting to grab hold of his estate and take control of his assets and money, MJ’s siblings (Randy, Jermaine, Janet, and Rebbie) allegedly kidnapped their mother Katherine and whisked her to Arizona so that Michael Jackson’s three kids (Prince, Paris and Blanket) would be free for the taking. They apparently wanted the court to declare that Katherine was not in full control of the situation and needs to be put into a conservatorship.

But the plan backfired, enabling TJ Jackson (Tito Jackson’s son) to petition the courts to have emergency guardianship of MJ’s kids. TJ had prior relations with Michael’s children, he has been like a father figure to them since MJ passed away. In petitioning for guardianship, one of the things that the court considers is that the petitioner has genuine interests in the child’s welfare, in TJ’s case, the kids apparently love him and are already accustomed to him.

Going back to Katherine by leaving the children and not communicating with them for 10 days, the court approved the emergency temporary guardianship petition of TJ. But then Katherine resurfaces and claims she was not kidnapped and just needed the break. According to her, she stayed at an Arizona spa where she had no access to a telephone. One thing her lawyer must not have informed her is that being a guardian is a big responsibility, she cannot just disappear on her wards because she felt stressed out. With her recent actions, the court temporarily removed her as guardian and this could further lead to permanently losing the guardianship and an opportunity for TJ to file for permanent guardianship.

Being the Jackson that they are, of course drama is never far behind along with numerous press conferences and public bickering, Katherine taped a segment for ABC’s “Nightline” to state that the ruling on the temporary guardianship was based on lies perpetrated by TJ’s camp. On the other hand, the court documents submitted by TJ stated that Katherine had no objection and wanted him to take custody of the children. The strange thing about the taped segment, Katherine looked like a hostage of her children because Rebbie, Jermaine, Janet and Rebbie’s daughter was behind her as she was reading her comments from a notebook (utterly suspicious).

If Katherine loses the custody of Michael’s kids, she’ll end up losing a lot perks. Though she would still receive an allowance for the estate, she would not be able to grab hold of the big bucks she can dole out to MJ’s siblings. MJ’s siblings were never as successful as him and apparently are constantly asking for dole outs from their money. For example, Jermaine Jackson has been in the news several times for being a deadbeat dad owing back child support payments amounting to more or less $100,000. His license was revoked and the house he was renting in Calabasas went into foreclosure. Also, his ex-wife Alejandra Jackson tried to squat her way into Michael’s home. She and her kids were taken in by Katherine which was supposed to be a temporary arrangement but in the end she insisted that Michael Jackson had given her permission to stay though she could not show any proof of that promise. She and her children were evicted by the estate after the notorious taser incident in the Jackson compound. Long story short, MJ’s siblings are trying to leech their way into the Jackson estate.

The latest on this custody brouhaha is that the judge instructed a probate court investigator to investigate Michael Jackson’s three children and prepare a report on the relationship between Katherine and the 3 kids. The judge has even given the probate court investigator the authority to just pop at the children’s school without prior notice and interview them. This action was taken to determine who should get permanent guardianship.

Apparently, Katherine Jackson’s camp got wind of it and has since stated that she is willing to share custody with TJ Jackson. Signs are again pointing that she is being manipulated by her children which is sad because this is somewhat a form of elder abuse.

And the Jackson family war rages on …

Sacramento, CA — With the presidential election coming up along with the ballot voting for the new tax hike in November and the overwhelming budget deficit,  Governor Jerry Brown and his Democratic Party lawmakers have been inundated with threats and warnings on what will happen if the proposed tax hike to cut the deficit should fail come November.

California's New Budget -- Sink or SwimA $91.3 billion state budget has been created and on the other hand  $6 billion worth of cuts has been signed by the lawmakers and Governor Brown in case their initiative fails. That would mean less funding for the local police, shorter school years, and potential tuition fee increases in the California State University systems and the University of California.

The new state budget has been designed so that the people will vote for the tax initiative or else  it or else the consequences will be pretty much catastrophic. These budget cuts will impact the public education system a whole lot and the public school districts are already struggling despite accounting for more than half of the state’s expenses. In the new proposed plan,  the school year could be reduced from the current 175 days to 160 days (of course, there will be some happy students when they hear this). If in case this goes through, California will be 20 days behind from the national average of the 180 days school year.

This new budget plan did not also sit  well with the Republican Party. State Sen. Anthony Canella, R-Ceres, questioned why the budget for education must be reduced to $5.4 billion when the state revenue for this year is higher than that of last year’s. He further added, “maybe you’ll let the kids out of school but the teachers will still be employed and in addition to that, they’ll get their full retirement for the year.

Connie Conway, Assemblyman Republican Leader has this to say, “It’s a disgrace that Democrats  are playing politics with the budget to sweeten the appeal  for ill-fated  taxes at the ballot box.”

Despite the rabid comments of the Republicans based on the recent polls, Governor Brown’s initiative was leading with 52% in favor of the tax initiative and 35% opposing it but the scary part is that the voting is still in November and opinions might change.

Part of the initiative is to provide additional funding to the public universities provided that the tax initiative passes voting and that the schools do not increase their tuition fees. Schools like the University of California are agreeing with Governor Brown’s plan and has agreed to not pursue the 6 percent tuition increase this fall.

According to UC spokesperson Dianne Klein, ” We do think that it’s a positive step toward bringing stability to funding for the University of California but it’s going to take some extraordinary measures to balance our budget without a fee increase.” But if the initiative fails come election day, the California State University and University of California school systems will end up $250 million short of funding from the state which will then create a situation for a mid-year tuition fee hike.

California is almost in dire straits, with Stockton going belly up and being gang banged by economic problems, it is not hard to imagine that the entire state of California might as well end up filing for bankruptcy one of these days. With the new California budget, people are caught between the devil and the deep blue see in their choices. It’s damned if you do, damned if you don’t.

Would you like to discuss your legal matter?

PHONE

Contact Us RECEPTION (877)509-5204

Our receptionist will assist in scheduling new and existing clients for all offices. For initial consultations we will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter.

Call us or use the email form and we will follow up with you right away.

EMAIL

The Law Offices of Tom Hogan will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 30 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.
Back to top