Treatment of Social Security Benefits in Family Law Act Matters

Family law practitioners are well aware that they must incorporate knowledge of federal law regarding taxation and retirement benefits into their daily practice. However, those same knowledgeable attorneys often overlook another significant area of federal law which has a recurring and pervasive impact on domestic relations issues. That area is Federal Old Age, Survivors and Disability Insurance benefits (OASDI, commonly known as “Social Security”).

Issues pertaining to Social Security benefits arise for family law practitioners in connection with characterization and division of property, bifurcation and early termination of marital status, calculation of child and spousal support and determination of child support arrears. Continue reading →

Reductio Ad Absurdum

Family lawyers are often perplexed by individuals who have variable or seasonable income. An actor can make a huge amount of money for three months work on a film and then have nine months of unemployment. A commission sales person can be lured to a new job by an initial large bonus characterized as a “loan” which is thereafter immediately forgiven over the succeeding years of employment. How should a court deal with that individual’s income for the purposes of child/spousal support and attorney’s fees?  The recent case of In re Marriage of Riddle, (2005) 125 Cal.App.4th, 1075, 23 Cal.Rptr. 3d 273, discusses these issues and provides a road map for handling same. Continue reading →

Need for Income & Expense Dec. (FL-150) in Child Support Modification

The consequences and rules for “timely filings” of income and expense declarations in the context of support modifications was discussed in the recent case of In re Marriage of Tydlaska 2003 DJDAR 13839

Lee and Darlene Tydlaska received a judgment of  divorce in September 2001 after a 27 year marriage.  Lee was ordered to pay, pursuant to the judgment, child support of $2,185 per month and monthly spousal support of $4,000. In December 2001, Lee filed an Order to Show Cause to modify child and spousal support. At that time, Lee provided an income and expense declaration dated December 24, 2001, showing his gross monthly income at that time was $10,423. At the hearing for the order to show cause in February 2002, the court appointed a special master to determine Lee’s income. The special master filed his report with the Court in July 2002. The special master found that for the year 2001, Lee’s gross income was $11,983.00. The Court held a hearing on August 8, 2002 and denied Lee’s request to modify support because Lee did not have a current income and expense declaration filed. Lee appealed the decision and the appellate court sustained and upheld the trial court. Continue reading →

What Constitutes Income for Child Support

In the recent case of Yesem Asfaw v. Zeman Woldberhan, 2/27/07 DJDAR 2721. BI82096 (Second Appellate District Division 8)  the appellate court found that in determining what made up available income to utilize the formula for child support pursuant to Family Code Sections 4058 and 4059,  that in certain circumstances depreciation is not an allowable deduction from gross income.

The case involved a non-custodial father whose source of income was monies received from various investments including apartment buildings. In determining his income available for support calculations  with respect to money derived from his rental properties, the court deducted depreciation. The mother appealed and the appellate court reversed. Continue reading →

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