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Gary D Sparks's Answers
Contributor Level 11
- 132 Legal Answers
- 3 Legal Guides
1
Attorney answers:
Tax issues for separated couple
If you are still married, my understanding is that the IRS will require you to file a "married" return, either filing separately or jointly. The best way to find out what you are legally required to do under the Federal tax code is to either consult with a tax attorney OR an "enrolled agent" (a tax specialist trained and licensed directly by the IRS). You can find an EA in your area at www.csea.org. If you file a return that financially benefits you, but in doing so financially "hurts"...
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2
Attorney answers:
What is the purpose of FL-180 and the Marital Settlement Agreement/Addendum?
The FL-180 is the actual Judgment of Dissolution in your case, also known as your divorce decree. The marital settlement agreement (MSA) is the contract between you and your spouse as to how you want to resolve/dissolve your marriage. You will need to attach your MSA to the Judgment for it to be incorporated into the Judgment and made a court order. However, there are certain provisions in the MSA that need to be duplicated as attachments to the FL-180 Judgment form -- child support,...
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3
Attorney answers:
Marriage Overseas, and husband stays overseas
A summons may be served on persons outside the United States by means of any of the following: 1. Personal service; 2. Substituted service; 3. Mail and acknowledgment of receipt; 4. Publication; 5. Mail with return receipt; or 6. If the court before or after service finds that the service is reasonably calculated to give actual notice: a. As prescribed by the law of the place where the person is served; or b. As directed by the foreign authority in...
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3
Attorney answers:
How do you legally stop child support if child is 18 and not full time high school student?
Child support in California for a child who has reached majority actually terminates at age 18, unless that child is a full-time high school student, in which case it terminates at 19 provided the child continues to attend high school full time [Family Code Section 3901]. If the child is no longer a full-time high school student, or the equivalent, then the payor of support can simply just stop paying. If there is a wage assignment, then the payor of support needs to file a motion at the...
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2
Attorney answers:
Dont show up for a restraining order hearing i cannot get the person served and i had an exenstion already is it refilable?
Go to the hearing. If you have been diligent in your attempts to serve the other party, the court may grant you another extension. This is at the judge's discretion. I have seen judges grant up to 3 extensions in my county, but it will depend on your judge and the normal county practices up in Sacramento.
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1
Attorney answers:
Can my ex-husband move out of state and take our children with out my consent?
I would like to see more specific language regarding your custody orders, including the San Francisco residency language. This would enable me to give you a more precise answer. The moveaway issue in California family law has been litigated heavily over the past few years. A proposed move in the residence of a child can be the "change in circumstances" required for the Court to revisit and modify child custody. A 2004 case (In re Marriage of LaMusca) decided by the California Supreme...
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3
Attorney answers:
Can I Ask the Similar Docs from the Other Party Based On CCP, Sec. 2031?
To supplement the first answer... if documents do not exist, or if you do not have them in your possession, custody or control, then you are not required to produce them. They cannot force you to "create" documents out of thin air. However, you do have to produce what you can, and explain why you can't produce the other documents. If you do not comply with the demand, your wife's attorney may file a motion with the court to request an order compelling you to comply, which also usually...
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1
Attorney answers:
False restraining order
You oppose the restraining order and demand a trial on the matter so that you can present evidence and testimony as to the falseness of the claims. However, you will not be able to request custody and visitation rights with your niece. You will need to see her when she is with either of her parents... or you may have to "make nice" with one of her parents (presumably her father?) so that you can see her (unless prohibited by the restraining order).
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1
Attorney answers:
How long after I get divorced can I remarry in CA?
California imposes a 6-month waiting period after when the Petition & Summons are first served before the court can "finalize" your divorce. If your divorce is "final" on August 3rd, meaning the Court is terminating your marital status as of that date (also meaning that you have satisfied the 6-month waiting period already), you could get married the very next day.
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3
Attorney answers:
401k holder divorces and was unable to update their 401k Beneficiary designation because they became comatose - and then died?
You have to understand that there are two levels of law in play here -- federal law (ERISA) and state law. Federal law will always trump state law. There have been some notable court decisions with respect to this issue. Both the U.S. Supreme Court and the Michigan Supreme Court have recently issued opinions dealing with the conflict between beneficiary designation and divorce judgments. In 2009, the U.S. Supreme Court decided Kennedy v. Plan Administrator for DuPont Savings &...
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