Can you impute income from assets?

Maybe. The court's ability to impute income from assets derives from section 4058, which defines "annual gross income" as "income from whatever source derived," and states that "[t]he court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income . . . ." (Id. at subds. (a) & (b).) The provision has been consistently interpreted to include the supporting party's ability to earn income from non-income producing or underperforming assets. 

You can contact me at Amanda@gordonfamilylaw.com for more information.

What is a Gavron warning?

If you are paying spousal support you may want to ask the Court to make a Gavron warning. 

A Gavron warning is when making a spousal support order, the court may advise the supported party that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court under Fam C §4320, unless, in the case of a marriage of long duration as provided for in Fam C §4336 the court decides this warning is inadvisable. Fam C §4330(b). The warning may be provided before trial as part of a temporary support order, or by stipulation, or possibly by notice from the supporting party. If the court issues the order, it should be reflected in the order or Judgment.  

You can contact me at Amanda@gordonfamilylaw.com for more information.

What should I do to protect my finances now that we have filed for divorce?

If you are the person who asked for a divorce, you may be surprised by the emotional chasm between yourself and your spouse and how long the process is taking. You spouse may be shocked, hurt and feel confused by your decision and it can take time for your spouse to engage in the divorce process or “catch up”. Many of my clients are frustrated by this delay, but there are still steps you can take to prepare yourself for what happens next. Here are five financial steps that you should do after you file:

1.    Set up a divorce notebook.  Use a binder or file folder that have sides to them so that when you lift up the file, things don’t fall out the sides. There can be a lot of paper generated during your divorce and having those papers organized allows you to be more prepared and less disoriented.

2.    Open individual bank account(s) in your name. New accounts often have more restrictions such as deposit holds. The sooner you can start a history with a bank, credit union or other financial institution, the sooner you will establish credibility with that institution. These are accounts in your name individually, and minimally you need a checking account and a savings account.

3.    Apply for a credit card in your name. If you have kept your credit cards separate, then you already have individual accounts. If you’ve been operating your credit cards as joint accounts, however, you want to have an account in your name. If you’re not sure if you’ll qualify, then get your FICO credit score first.  Remember that whenever you apply for a credit card, you get an inquiry on your credit report.  

4.  Scan financial statements and documents. You’ll want to get into the habit saving and downloading any financial statements that you receive so that you have them at hand, or file them in your divorce file for easy access. These documents include investment and bank statements, tax returns (most recent two years), debt statements, social security reports (usually received before your birthday), and any other statements that have to do with assets and liabilities (debts).

5.    Get your credit report and credit score.  Your credit score will give you information about what your credit options are, and the credit report will let you know which of your existing credit cards are joint vs. individual, as well as letting you see if there are any financial items you don’t recognize.

You can contact me at Amanda@gordonfamilylaw.com for more information.

Personal Injury Damages - are they community property?

I was in a car accident during marriage but my case has not settled yet, what is the character of the money I recover from the car accident?

Who gets the proceeds of a personal injury settlement depends on cause of action arose and the parties needs. What's important to know is that in the case of personal injury damages, the court has discretion to award the entire proceeds to the injured spouse. 

If it's undisputed that the accident happened, and therefore the cause of action arose, during marriage and prior to separation, then the proceeds of the settlement are community property.  (Marriage of Klug (2005) 130 Cal.App.4th 1389, 1398-1399.)    (Fam. Code §§ 780, 2603(a); Hogoboom & King, Cal. Prac. Guide Family L., Ch. 8-B, § 8:267.) 

The statutory characterization rules apply to all compensation for damages arising from tortious injury to protected personal interests regardless of the source of the payment, i.e., whether by the tortfeasor or the tortfeasor’s liability insurer. (Marriage of Klug, supra, 130 Cal.App.4th at 1397; Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034 [loss of consortium damages]; Hogoboom & King, supra, at § 8:268.) 

However, the general rule of equal division for community property is modified in the case of “community estate personal injury damages,” and shall be awarded to the injured spouse unless the Court finds that the economic conditions and needs of each party, the time elapsed since the damages recovery, and any other pertinent facts of the case, demonstrate that the interests of justice require another disposition.  (Fam. Code § 2603(b).)  If so, the Court may allocate the damages to each party as may be just, provided the injured spouse receives at least one-half the damages so allocated.  (Id.) 

If you have questions about personal injury damages in the context of divorce, please reach out to Amanda@gordonfamilylaw.com  

Can parental rights be terminated without an adoption request?

Experienced bay area attorneys will tell their clients that yes, parental rights under Family Code Section 7822 can be terminated outside of an adoption proceeding.

Family Code section 7800 states, “the purpose of this part is to  serve the welfare and best interests of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life.”

In In re Marcel N. (1991) 235 Cal.App.3d 1007, the court held that one’s parental rights may be terminated even when there is no pending adoption.  The Court found that precluding a single mother who is capable of raising her child from terminating the parental rights of the child's natural father should not be of less importance than allowing a remarried mother – whose new husband wishes to adopt her child to terminate the parental rights of the biological father.

Similarly, in In In re Marriage of E. and Stephen P. (2013) 213 Cal.App.4th 983 the Court found that terminating the father's parental rights was in the child's best interest, regardless of whether there was somebody waiting to adopt the child. 

If you are considering terminating parental rights or you are faced with a termination petition, we strongly recommend that you reach out to an attorney to seek counsel.  You can contact me with questions at amanda@gordonfamilylaw.com