This month, I am answering three separate legal questions on family law topics which clients have asked me this past month.
Parents who are separated, divorced, or were never together in the first place must still communicate with each other regarding their children. Good communication is the key to a good co-parenting relationship. Now that every parent has a personal computer, tablet or smart phone, several programs have become popular ways for parents to communicate. In fact, in high conflict cases, courts can order parents to communicate exclusively through these programs. The two most popular programs in the Inland Empire are www.Ourfamilywizard.com (OFW) and www.Talkingparents.com. Both programs offer messaging services and other modes of communication similar to texting or email, with one major difference. Anything sent via OFW and Talking Parents is unalterable. It cannot be deleted and it cannot be modified. In other words, both programs give parents (and the court) a reliable record of communication to refer to any time there is a dispute over what has been said. This is because the communication records are stored on file servers and there is no possibility of data corruption or loss. Both programs are entirely secure and no one has access to them outside of individuals granted access by both parties (usually children or family members) and the court. These programs create a traceable and indisputable communications log which can eliminate the need to argue over “he said, she said.” Although the programs are similar, they are not identical.
FW costs between $100.00-$120.00 per year, per parent. On the other hand, Talking Parents is free for the basic version. However, while Talking Parents is free to use, if you need a record of your communications for court they charge a monthly subscription of $4.99 or printed records can be generated at a cost of $19.00, plus $.19 per page.
As far as extra features, OFW has a calendar function that can include the parenting schedule for all child related events such as school activities, holidays and medical appointments. Schedule modifications can be requested through OFW and calendars and messages can be printed. As stated, all entries into the OFW system are non-modifiable. Also, OFW offers a “Tone Meter” as part of its package. This helps parties identify and flag emotionally charged sentences within the messages being written. Tone Meter is similar to spell check and goes beyond sentiment to gage words and phrases against levels of feeling before the message is sent. Both OFW and Talking Parents have websites which more completely explain their functions and features. It has been my experience that these programs improve parent communications and are therefore a positive addition to the need for clear and respectful communication.
Despite the disclosure requirements of Family Code Sections 2100-2106, from time to time parties reach a full and final judgment, only to find out later that they forgot to include an asset or liability. Sometimes this can be something simple like a motorcycle or credit card; other times it can be complicated like a pension or a home equity line of credit. Whatever the issue, the first choice is always to try and work out a solution with the other party. However, when this fails, Family Code Section 2556 gives the court jurisdiction to award the omitted community assets and liabilities to the parties. In other words, a party may file a post-judgment motion. In these cases the court is to divide an omitted asset or liability, unless it finds upon good cause that the interest of justice requires an unequal division. Two likely candidates for an asset to be unequally divided would be where one party hides an asset from the other and has use of it for a period of time before discovery. The other would be the Laches situation, where one spouse delays making a claim to divide an asset, during which time it greatly appreciates in value due to the post-separation efforts of the other spouse.
Since no one wants to return to court after their judgment has been entered, the parties should pay particular attention to fully and completely filling out and exchanging their Declarations of Disclosure and then making sure their judgments are complete.
ALIMONY PROVISIONS IN PRE-NUPS
Pre-nuptial agreements often contain provisions about how much a spouse will pay in alimony, also known as spousal support. In California the spousal support provisions in pre-nups can be thrown out if judges deem them unfair, or signed too quickly or under duress. See Family Code Section 1612(c). Now the Tax Cuts and Jobs Act of 2017 offers another avenue for challenges. Specifically, starting in 2019 tax payers will no longer be able to deduct their alimony payments. Since most couples who already have a pre-nup probably don’t want to renegotiate, it will be up to divorce attorneys or judges to decide whether the amounts or formulas in old pre-nups are enforceable for couples who divorce in 2019. It has been said that the deductibility of alimony helps to settle high earner cases. The loss of deductibility may make it harder to settle support cases. For now anyone considering a pre-nup which includes support provisions would do well to include a consideration of support as both deductible and non-deductible so as to minimize the risk of support litigation in the pre-nup divorce.
Note that the information in this blog is general in nature. If you have other questions about divorce or family law, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handle legal issues regarding adoption, annulment, mediation, child custody, child and spousal support, community property, visitation, separation, and domestic violence as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]