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Edward Misleh
466 followers -
Attorney, Divorce lawyer, Family Law Attorney, Domestic Violence Lawyer, Personal Injury, Auto Accident, Slip and Fall
Attorney, Divorce lawyer, Family Law Attorney, Domestic Violence Lawyer, Personal Injury, Auto Accident, Slip and Fall

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Military Member’s compensation includes basic pay, special pay, and allowances, all of which is used to calculate spousal support and child support to be paid by the Military Member to a non-Military spouse and/or dependent.

Active Duty Military Members receive basic pay and special pay. Basic pay is compensation which corresponds to their rank and seniority. Special pay is paid for special or hazardous duty. Military Members can also receive bonuses for various purposes. And then there is tax-free compensation known basic allowances for housing (BAH) and basic allowances for subsistence (BAS). These allowances can be increased when a Military Member has dependents.

The military uses an adjusted civilian equivalency, known as “Regular Military Compensation” (RMC), to determine the actual value of the Military Member’s salary at each grade. The RMC combines basic pay, BAH and BAS, along with the tax advantage from untaxed allowances. The Department of Defense Office of the Actuary publishes a chart which provides a more realistic and correct basis for an award of child support, spousal support, and attorney’s fees. This chart compares the incomes of a Military Member and a non-military spouse.

California courts have addressed the arguments that setting child support based on allowances violated the federal preemption doctrine since federal law exempts military allowances from the definition of income for federal tax purposes, and such allowances are not subject to wage garnishment for support arrears. On appeal, the court affirmed, finding the law of federal pre-emption “inapplicable to California support law,” given that “[e]ach parent should pay for the support of the children according to his or her ability,” that gross income “means income from whatever source derived,” and that “employment benefits” include “taking into consideration the benefit to the employee, [and] any corresponding reduction in living expenses. “

The United States Supreme Court addressed preemption of federal law to state that it arises when Congress has explicitly stated its intent in statutory language explained: “We have consistently recognized that the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has ‘positively required by direct enactment’ that state law be pre-empted. Before a state law governing domestic relations will be overridden, it must do ‘major damage’ to ‘clear and substantial’ federal interests.’”

Exhaustively reviewing cases from around the country, the Supreme Court found that the nontaxable status of military allowances did not suggest that Congress had any preemptive intent with regard to either child or spousal support. Nor was the court impressed by the fact that such allowances could not be garnished. The United States Supreme Court found that the State of Tennessee could hold a military veteran in contempt for nonpayment of child support when the support was based on disability payments not subject to garnishment, and such payments were his only means for satisfying his support obligation. The Supreme Court rejected the idea that disability benefits were not subject to any legal process aimed at diverting funds for child support, including a State-court contempt proceeding, and held that the statutes merely applied to State proceedings against agencies of the United States government. As the California court noted, the purpose of those laws is “to avoid sovereign immunity problems, not to shield income from valid support orders,” citing In re Marriage of McGowan, 638 N.E.2d 695, 698 (Ill. App. 1994).

The California court therefore joined courts across the nation in holding that “federal preemption is inapplicable to military allowances such as BAH and BAS, and that such allowances are included in a party’s gross income for purposes of support when State law encompasses them.” The court held that not only did including such allowances in gross income “not do major damage to a clear and substantial federal interest,” but “to the contrary, the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfill their family commitments.”
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The Difference Between Temporary and Permanent Spousal Support

In California, temporary spousal support is awarded to one spouse (called the supported-spouse) so that they can live in the manner they were accustomed to during the marriage. Temporary support can be awarded to a husband or a wife. Temporary spousal support continues pending disposition of their divorce. A temporary spousal support order is an attempt by a California court, pending trial, to allocate family income equitably between parties, considering their individual incomes and expenses. The amount awarded as temporary support is to maintain the status quo of the parties until trial. Temporary spousal support can be determined using a computer-based program.

In contrast to temporary spousal support, California permanent spousal support (also known as long term spousal support) is intended to provide financial assistance to the supported spouse. The amount awarded is determined by the financial circumstances of the parties after their dissolution and the division of their community property. In determining permanent spousal support, a court must consider certain factors as set out in California Family Code § 4320. A judge cannot use a computer-based temporary support guideline figure, even if used only as reference point, but must consider all the factors found in the California Family Code.

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Jogging in the City of Sacramento
A jogger recovers damages from the City of Sacramento when he was hit by a car.  While jogging and crossing a street, an automobile collided with the pedestrian.  The jogger sued the City of Sacramento for its failure to warn a motorist, who was driving on a dangerous S-curve, of a crosswalk.  The Plaintiff (jogger) was partially paralyzed and, as a result of injuries to the brain, has difficulty talking.  In April of 2011, Plaintiff was awarded $18 million in damages.  51% of the award was attributed to the city.  Despite the verdict, reportedly there was a pretrial agreement that capped damages at $6 million.
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California Custody and Guardianship
The difference between custody and guardianship can be complicated because they are essentially the same thing.  One distinction is a California Family Law court grants custody orders while the California Probate court grants guardianship orders.

California Custody
Custody is the arrangement that parents have for the raising of their children.  Custody orders grant one or both parent legal custody and physical custody.  Legal custody is the right to make decisions regarding your child’s education, religious practice, and medical treatment.  Physical custody includes the parenting time given to one parent after designating the primary parent.

California Guardianship
Guardianship is established by a California Probate court order that legally places a child in the care of a guardian.  The child lives with the guardian who has physical custody of the child.  Although the biological parents do not have custody (their rights are suspended), they still have their parental rights which are not terminated by the guardianship.  A California Probate court guardianship order supersedes a California Family Law court custody order because the guardian has the right to act on behalf of the child, while the parent’s rights to do so are legally on hold.

California Guardian Rights
Parents are the legal guardians of their children at birth and continue to be so until a California Probate court order names someone else as guardian.  A non-parent guardian has the same rights as a parent.  They can apply for and authorize medical care, make decisions for the child social and extracurricular activities, and interact with the child’s educators to make educational decisions.

California Foster Care
In California, The Department of Child Social Services can remove a child from the home should it be determined that the child is at risk of injury, abuse or neglect.  Child Protective Services will apply for emergency orders seeking to place the child in foster care.  Should the problem which created the risk to the child not be corrected, the State of California can then terminate parental rights so that another family can assume guardianship of the child or adopt the child.  The child remains in state custody until parental rights are terminated and guardianship rights are ordered.

California Termination of Guardianship
Parents can voluntarily award guardianship of a child to another individual should they not be able to care for their children themselves.  When this is done, the parent usually has included in the court order a right to revoke the guardianship which can be done in a subsequent petition to the court.  Parents can award guardianship on a permanent or temporary basis.  Temporary guardianships usually have a time limit imposed by the probate court.  At that time, the parent and guardian must either renew the guardianship arrangement or it automatically terminates.

California Guardianship and Third-Party Custody (Grandparents and Relatives)
There are often times when neither biological parent can care for their child and it becomes necessary to appoint a third-party as guardian or custodian of the child.  The terms “guardianship” and “third-party custody” are often used interchangeably.  It is important to note that a guardianship and third-party custodianship does not terminate the parental rights of the biological parents.
The differences between California Guardianship and California Third-Party Custody include:
Guardianships are filed in a California Probate Court and the potential guardian must prove that the parents are unfit, unwilling or unable to care for the child.
A guardianship requires an annual reporting to the Probate Court as to the well-being of the child.
A legal guardianship remains in place unless a parent petitions for the guardianship to be set aside.  The court must then find that the biological parent is now fit, willing and able to care for the child, and it is in the best interests of the child that the guardianship be set aside.
Third-Party Custody petitions are filed in a California Family Law Court.
Third-Party Custody petitions may only be brought when a divorce or other custody proceeding is already pending.
A potential third-party custodian must prove that each parent is unfit, unsuitable or unable to be custodian, or the welfare of the child requires, and it is in the best interests of the child to be placed in the care of the potential custodian.
Third-party Custody does not require annual reporting to the court.
A judgment for Third-Party Custody remains in effect until modified by a California Family Law Court.
Modification of Third-Party Custody requires showing that a change in circumstances of the child or the custodian has occurred and that a modification is necessary to serve the best interests of the child.
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RETIREMENTS PLANS

Start Receiving Your Interest In Your Spouse’s Pension
Gillmore rights allow the former non-employee spouse to start receiving their share of benefits in the former employee spouse’s pension should they want to continue working after their retirement date.  The former non-employee former spouse has the ability to receive their interest in community property at the earliest date on which the former employee spouse would be eligible to retire, regardless of whether the former employee spouse actually retires at that time.  This option to commence benefits at the earliest retirement date is governed by federal law 29 USC §1056(d)(3)(E)(i);  Internal Revenue Code §414(p)(4);  and a California court case Marriage of Gillmore (1981) 29 C3d 418.

The Gillmore Election
A “Gillmore Election” occurs when a former non-employee spouse makes a motion in court to demand payment of benefits from the plan or the participants.  The "Gillmore election is irrevocable which means that if the former non-employee spouse commences receiving benefits before the former employee spouse actually retires, the former non-employee spouse will not be entitled to share in any future benefit increases due to the former employee spouse’s continued service, increased age, or increased salary.  The former non-employee spouse will still be entitled to cost-of-living adjustments.

Waiver of Gillmore Rights
It is possible for parties to waive Gillmore rights explicitly as part of a divorce proceedings.  The parties should be aware that retirement benefits can be divided by using the Time Rule Formula or by a Separation of Account.  Should they choose the Time Rule Formula, this can be construed as an implicit waiver of Gillmore rights, unless the Domestic Retirement Order states otherwise.  CalPERS, CalSTRS, and other government plans require language in their Domestic Relations Orders stating that payments to the former non-employee spouse will not commence until the member actually retires and begins receiving payments.  This is with regard to the plan and payments made directly by the plan only;  a non-employee spouse could still seek court action against the former employee spouse requesting payments directly from the still-working former employee spouse.

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How to Start Your Divorce

A proceeding for dissolution of marriage or for legal separation of the parties is commenced by filing a petition in which you will state certain facts:  the date of marriage, the date of separation, the  number of years from marriage to separation, the number of children of the marriage, and the age and birth date of each minor child of the marriage.

Should you not be making a demand for money, property, costs, or attorney’s fees in the petition, you and the judgment of dissolution of marriage is entered by default, you will not need to file an income and expense declarations or property declarations.

A copy of the petition, together with a copy of a summons, needs to be served upon the other party to the marriage.

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Immediately Receive Your Interest in Your Former Spouse’s Retirement Plan

Gillmore Rights
Even though your former spouse would like to continue working past their earliest retirement age, you can start receiving benefit payments based on the community interest in the retirement plan before your former spouse actually retires.  “Gillmore Rights” allow the non-employee former spouse to receive their community property share of the employee former spouse’s benefits at the earliest date on which the employee would be eligible to retire.  

Gillmore Election
The former non-employee spouse must file a request for order with a California Family Court  for payment of benefits from the plan or the participant.  Alternately, should you have already obtained a Domestic Relations Order, the non-employee former spouse can simply contact the former spouse’s plan administrator to begin receiving benefits.

Gillmore Limitations
Once the non-employee former spouse begins to receive benefits they will not be entitled to share in any future benefit increases due to the employee’s continued service, increased age, or increased salary.  The non-employee spouse will still be entitled to cost-of-living adjustments.

Waiver of Gillmore Rights
Be aware that if you and your former spouse choose to divide retirement benefits by the “Time Rule formula” instead of actually separating the retirement into two accounts, this can be construed as an implicit waiver of Gillmore rights, unless the Domestic Relations Order states otherwise.

CalPERS & CalSTRS
These California state plans require language to be contained in a Domestic Relations Orders stating that payments to the non-employee former spouse will not commence until the member actually retires and begins receiving payments.  This affects only payments made directly by the state agency.  The non-employee spouse can still seek court order to receive payments directly from the still-working employee.

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Putative Spouse and Registered Domestic Partners

If a California Family Law court finds that a marriage is void or voidable and that either party or both parties had a good faith belief that the marriage was valid, the court will declare either one or both parties to have the status of a putative spouse.
Some of the rules that apply to a putative spouse also apply to Registered Domestic Partners.

Good Faith Belief
The California courts must make an inquiry into the party’s subjective and objective belief of a valid marriage.  Subjective belief focuses on the actual state of mind of the alleged putative spouse.  While there is no requirement that the claimed belief be objectively reasonable, good faith is a relative quality and depends on all the relevant circumstances, including objective circumstances.  In determining good faith, a California trial court must consider the efforts made to create a valid marriage, the alleged putative spouse’s personal background and experience, and all the circumstances surrounding the marriage.  The reasonableness of the putative spouse’s belief in the face of objective circumstances pointing to an invalid marriage is also considered in determining whether the belief was genuinely and honestly held.

Quasi-Marital Property
If a putative spouse claim is upheld, the property acquired during the invalid marriage is considered “quasi-marital property” and is treated like community property in an annulment or estate proceeding.  A California Family Law court will designate property that would otherwise have been the spouses’ community or quasi-community property as “quasi-marital property” and will divide the property as if there was a valid marriage.  

Intestate Share
A putative spouse has intestate succession rights to the same extent as a surviving spouse.  In addition, an ownership claim in property may be asserted by the putative spouse in the same manner as would be asserted by a spouse.  However, a putative spouse is not entitled to a family allowance.  In addition, if the decedent is survived both by a surviving spouse and a putative spouse, the application of equitable principles may result in the putative spouse’s only being entitled to his or her one-half of the quasi-marital property, leaving the decedent’s one-half to pass by will or intestate succession.

Support for Putative Spouse
In a judgment of dissolution or legal separation, the court may order a party to pay spousal support to the other in any amount, and for any period of time, that the court deems just and reasonable.  The same is true for a judgment of nullity, as long as the party for whose benefit the order is made is found to be a putative spouse.  A party found to be a putative spouse may be awarded support from the other party, both during the pendency of a nullity proceeding and in a judgment of nullity, as if the marriage had not been void or voidable.
The court may also order a party who is required to pay spousal support to furnish reasonable security for payment.   However, the court’s authority to order security is limited by the requirement that the security be “reasonable.”

Registered Domestic Partners (RDPs)
A person with a good faith belief in the validity of his or her registered domestic partnership is entitled to protection as a putative registered domestic partner, even if the domestic partnership was not properly registered.  By extension of the family code for a putative spouse, quasi-marital-property principles apply to “putative domestic partners.”

Registered Domestic Partner Nullity Proceedings
Registered domestic partners may petition the court for a nullity of their partnership on the basis of its being a void or voidable relationship.  A California Family Law court may order temporary or permanent partner support in a nullity action if one or both parties is found to be a “putative” domestic partner.

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In California, amounts received for damages resulting from a party's negligence are determined by a number of factors.  The following are examples of awards received by plaintiffs who have suffered pain and suffering and loss of employment.

Tuolumne County, California a pedestrian was struck by a care as they were crossing the street.  The pedestrian was not in the cross walk.  Pedestrian suffered injuries to include;  a fractured pelvis, broken arm, and a concussion.  The fractured pelvis prevented plaintiff from walking for months.  In May 2015, plaintiff was awarded $200,000.00 less their 40% for contributory negligence.

Los Angeles County, California one car was rear-ended by a truck while traveling on the freeway.  The car driver suffered a neck injury which required future surgery.  Plaintiff claimed daily pain from this injury and was awarded $1,004,000.00.

San Diego County, California a car was rear-ended by a tanker truck which caused the car to collide with a SUV.  The car driver suffered multiple fractures to the jaw, traumatic brain injury, was hospitalized, and underwent surgery where his jaw was wired shut for eight weeks.  Plaintiff required subsequent surgeries and various treatments for pain and therapy.  Plaintiff had future surgery, continued care and therapies for his jaw and chronic pain.  Plaintiff also alleged substantial past and future earning losses.  In June 2015, plaintiff was awarded $17,393,480.00.

San Diego County, California an auto rear-ended another auto which was described as a minor impact collision.  Driver sustained back, neck and shoulder injuries and had to undergo 4 ½ years of treatment.  Future lifelong treatment included pain medicines and surgeries to the shoulder and back.  In June 2015, plaintiff was awarded in arbitration $681,606.20.

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Are You Paying Too Much in Support?
To determine if you are paying or receiving the correct amount of child and spousal support you should look at your current California child support and/or California spousal support order to make sure the calculations are correct.  You should also consider if any order reflects that current condition or circumstances that exist for you and the coparent.
1. The timeshare is correct.  Timeshare is the amount of time children spend with each parent.  Any calculation should be done on an hourly basis to ensure accuracy.  You must also consider any timeshare differences for other children you and your coparent share.
2. The tax filing status for you and the coparent are correct.
3. Payments for all interest paid on a mortgage and all property taxes have been included.
4. Possibility of a hardship deduction to care for other children in the house that do not belong to you and your coparent.
5. All child care costs add-ons are being divided equally.
6. Verify your income and your coparent’s income.  Take the amount of pay on a biweekly paycheck (every other week), multiply it by 26, and then divide the total by 12 to arrive at a monthly figure.
7. All taxes are included.  Tax payments will vary should you live outside State of California.
8. Any other income for you and your coparent (rents, social security or interest) is included.
9. That all non-taxable income such as worker’s compensation, disability and non-taxable social security is included for gross income.
10. All health insurance premiums (medical, dental, and vision) have been included.
11. Contributions to a mandatory retirement account are included.
12. Payments for any job-related expenses have been considered (union dues, uniforms, gas, car payments, bridge tolls, work-related cell phones).
13. All overtime pay is considered.  If a coparent’s overtime has suddenly stopped, the court can consider average in the past 12 months of pay.
14. A self-employed coparent has correctly accounted for all income and expenses arising from their business.
15. Any current child support has ended for any child who has graduated from high school or has reached the age of 19 (whichever is first).
16. That the coparent receiving support has not moved-in with their lover.  Spousal support can be reduced or eliminated if the supported spouse is in a romantic relationship and the significant other is paying some or all of the supported spouse’s bills.  A romantic relationship differs from a roommate situation in that it is presumed roommates share expenses.
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