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What Are Grandparents’ Visitation Rights?

A grandparent would never think that their right to see their grandkids could be taken away. Unfortunately, life-changing events such as death, divorce, or estrangement can force separation between grandparents and grandchildren. This breaking of families can cause desperate grandmothers and fathers seek legal action to retain their grandparent rights. All 50 states in the US have some type of grandparent visitation statute. This means that grandparents can ask to be granted the legal right to maintain a relationship with their grandchild. Each state, however, varies in who can visit and how visitation will be carried out. Only about 20 states have restrictive visitation statutes. This means that grandparents can get a court-ordered visitation only if the parents are divorcing or if both parents died. The circumstances of carrying this restrictive visitation out is also dependent on the state.

In the state of California, a grandparent can ask for reasonable visitation with a grandchild. The court must find that visitation between grandparent and grandchild is in the best interest of the grandchild. Further, the court must find that the visitation is balanced with the parent’s rights to make decisions about the child. Grandparents cannot ask for visitation rights if the parents are married. Exceptions include but are not limited to:

  • The parents are living separately;
  • The child does not live with either of his or her parents; or
  • The grandchild has been adopted by a stepparent.

If at any point the above circumstances change, parents are legally allowed to remove grandparent visitation rights. However, before filing a petition with the court to grant these rights, make sure you are well-informed regarding the details in California’s law. In some cases, mediation between parents and grandparents could help in reaching a compromise regarding visitation with the child. It is possible to hire a mediator to assist in this process. Even if you do decide to go to court, a mediator will be required to meet with you.

It is recommended that an experienced lawyer assist in navigating you through laws regarding grandparent visitation rights. Parents can file against grandparent visitation statutes. The court has further been known to make controversial and contradictory decisions in the past. Before filing your petition, contact a family law attorney. Certified family law specialist Julia McDowell is familiar with navigating these complex child custody laws and can offer appropriate guidance to your case. Contact us at Hoover Krepelka, LLP today.

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One Billion Rising to End Violence Against Women

This Valentine’s Day will also be the day of One Billion Rising, a worldwide movement aiming to end all forms of violence against women. One in three women will be raped or beaten in their lifetime, usually by someone they know. Partners engaged in domestic violence can extend their violence beyond physical and sexual abuse however. This can include:

  • Verbal abuse
  • Extortion or control of finances
  • Use of technology to spy, track, or stalk the victim
  • Using religion or religious teachings to exert control over the victim

Domestic violence can happen to anyone and the abuse can put victims in life-threatening situations. The One Billion Rising movement encourages domestic violence victims to hold their predators accountable for the violence committed against them. Victims across the globe are speaking up through marches, social media, and protests. From the #MeToo movement to Hollywood celebrities speaking out against corrupt people in their social circles, people are becoming more and more aware of violence against women.

However, some victims may still feel that they have no support or not place to go. While One Billion Rising hopes to connect victims and have them support one another in their journey of recovery, some extra resources could go a long way. If you are a domestic violence victim living in the Bay Area, WomenSV could help you find resources to leave your violent situation. If you need legal help such as help filing for divorce or battling for child custody, make sure to contact an attorney. The lawyers at Hoover ♦ Krepelka have years of experience handling family law cases. Contact us today.

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Hoover ♦ Krepelka, LLP Makes the List of Best Child Support Lawyers in San Jose 2018

Expertise, a leading company that helps customers find qualified professionals in their area, has recently selected the San Diego Divorce and Family Law Attorneys of Hoover Krepelka as part of their “Top 20 Best Child Support Lawyers in San Jose 2018” list. The Top 20 were selected based on their:

  • Reputation or history of happy customers and amazing service;
  • Credibility, licensing, and awards;
  • Expertise or mastery of their craft based on years of experience;
  • And professionalism, such as providing service in an honest and respectful manner.

Hoover Krepelka was placed into the top 20, out of 222 total considerations, for embodying these qualities. With over 100 years of family law experience, Expertise was impressed with our extensive years of customer confidence and satisfaction. In addition to child support, our law office can also assist in divorce, child custody, grandparent right’s and alimony cases, to name a few. In addition, our law office helps customers of different backgrounds who may even speak different languages. Our attorneys speak multiple languages including:

  • English
  • Russian
  • Spanish
  • Hebrew
  • Mandarin

Family law cases can be difficult and very stressful for the people involved. If you need assistance in a child support or other family law case, contact the attorneys at Hoover Krepelka, LLP. Our lawyers will work to protect your rights in court.

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The New Tax Bill and its Impact on Divorcing Couples

Shortly before year-end, President Trump signed the “2017 Tax Cuts and Jobs Act” into law. As is so often the case in law and government, the text of this 1,000-page law is intimidating. I cannot begin to pretend to be able to fully understand all its ins and outs, nor to explain those to anyone else. I am in particular a family law attorney, not a tax attorney or CPA. Nothing herein should be construed as tax advice, nor as specific legal advice for any one person’s exact situation. This is a template, global overview, which is hopefully helpful to many.

What I can do is offer my best analysis and projection on the most significant impact this will have on divorcing couples, and that is its effect on the tax deductibility of spousal support, also sometimes called “alimony” in some states.

Under Section 11051 of this Act, the Bill includes language eliminating the tax deductibility of spousal support by the payor, and corresponding requirement that it be reported as income by the payee. This had been the tax treatment of spousal support for the last approximately 75 years. This new law does not affect any divorce or separation instrument executed by 12/31/2018. So, we all have this year to figure this out.

Internal Revenue Code Section 71(2) defines a “divorce or separation instrument” as “(A) a decree of divorce or separate maintenance or a written instrument incident to such a decree, (B) a written separation agreement, or (C) a decree requiring a spouse to make payments for the support or maintenance of the other spouse.” The law also provides that orders executed before 12/31/2018, which are modified thereafter, will remain under the old taxability rules unless the modification order specifically states that the new rules will apply to it.

I read the law as intended to apply to any spousal support order executed by 12/31/2018, whether so-called “temporary” or “permanent.” I do, however, see some, slight wiggle-room, and would not be shocked if a court ruled that the order had to be part of a Judgment, as opposed to a temporary order only, to preserve the old taxability rules. Again, I believe such a ruling would be in error, but it would not surprise me. If we start to receive any such errant rulings, they will come in early 2019; someone will have to take them up on appeal, and we may not have appellate guidance on that question until late 2019 or early 2020. The court and legal system is invariably slow to catch up with the times.

So, in theory, any order executed before 12/31/2018 can remain under old taxability rules throughout its life, even if modified later. Although, a complete unknown is how trial courts handling modifications will respond. Will the judges as a matter of course from 1/01/2019 forward start shifting modified orders to the new rules? Parties stipulating to modify their pre-2019 orders may well specifically preserve the tax deductible for payor, taxable to payee rules, in order to maintain what they’re used to. But judges presented with modification requests might change the numbers, and the taxability. Not that my opinion matters, but that’s probably what I would do as a judge.

What is certain is that spousal support analyses in the world of family law must adjust in the months and years to come. The bottom line effect of the changes is that spousal support will become like child support – a non-tax event. This means spousal support will have to be paid out of after-tax monies available to the payor, and then will not be taxable income to the payee. Obviously, someone is always paying the taxes. So, what the new law does is shift the tax burden for spousal support from the payee over to the payor. Invariably, a payor is the higher earner, and most the time will therefore also be in a higher tax bracket.

This means that since payors will have to cover the tax burden on spousal support under the new law, they will have less after-tax income available to do so. Therefore, we can expect spousal support awards to be less. Payees can expect to receive smaller checks. Spousal support is a divvying up of two people’s income available after taxes. With the payor paying the taxes on the support, instead of the payee, there is less in that overall pool to share.

One thing that is certain is that if there exists on file at least some kind of spousal support order before 12/31/2018, there should be more options going forward.

From an abundance of caution, we are proposing language like the following in newly drafted support orders, to try to protect against future changes and uncertainties:

“The payment of spousal support from Payor to Payee shall be tax deductible to the Payor and shall be included as taxable income by the Payee on his/her Federal and State personal income tax returns. This is a critical and material provision, and, is part of each party’s expectations in entering the spousal support order set forth herein. In the event the tax treatment of spousal support contemplated herein is disallowed by any taxing authority, and thereby the parties’ expectations regarding their respective net disposable incomes are not met, this shall be a material change of circumstances warranting modification of this spousal support order. Any such modification, whether by stipulation or contested before a judge, shall be retroactive to whatever extent necessary to address the unmet expectations. Additionally, the Payee shall reimburse the Payor an amount to be determined to fairly adjust any support paid during a period of time for which tax deductibility for the Payor was later disallowed by any taxing authority. The parties shall meet and confer to determine the appropriate adjustment and amount of reimbursement should these circumstances arise, as well as the timing (i.e., lump sum or installments) of reimbursement. The Court reserves jurisdiction to effectuate the terms of this Provision.”

I do advise that you speak with your tax preparer or other tax expert about the foregoing, for tax planning purposes and specific tax advice. If you do not have such a person, please let me know and I’d be happy to refer you to someone who can assist you. Contact me at the San Jose Divorce and Family Law Attorneys of Hoover ♦ Krepelka, LLP.

Written by Travis I. Krepelka

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3 Resources You Can Use to Serve Divorce Papers to a Missing Spouse

You’ve filled out the paperwork and are ready to serve your spouse their divorce papers. In most cases, the papers can be delivered personally or sent through the mail. Easy, right? However, to your absolute shock, your spouse suddenly disappears. Now, you’re left wondering how in the world you’re going to serve those divorce papers without your partner’s latest contact information. Fortunately, there are several resources in place that assist individuals in serving their spouses. Check out the list below to find out which of these options fit your needs.

Service of Process: If you can’t serve divorce papers to your spouse via delivery in person or through the mail, it is possible to ask another individual to serve the paperwork for you. The individual must be an adult and can be a friend, paid process server, or a county sheriff. Your spouse can attempt to refuse the papers by not answering their door, but the process server can hand the paperwork over when they leave for work or even go to your spouse’s place of employment to deliver the paperwork.

Substitute Service: If the process server attempts three times to deliver the divorce paperwork at your spouse’s home or place of employment and your spouse is not there, the process server can leave the documents with an adult that lives in the spouse’s house or an adult in charge of his place of employment. In this case of substitute service, the process server must inform the alternative party that they are delivering important legal documents for the spouse. Afterwards, the process server will be responsible for filling out a Declaration of Due Diligence form listing the attempts made to serve your spouse. They must also fill out a Proof of Service form and provide a physical description of the person whom they gave the paperwork to.

Service of Publication: As a last resort and after you have exhausted the resources above, you can choose to move on and attempt to serve your spouse’s paperwork through service of publication. For this service, individuals must publish their summons and complaint in a newspaper that is distributed in the region your spouse may reside in. However, before you can use this service you must present your evidence to the court that you attempted to serve your spouse before reaching this last resort. If the court is convinced you did everything possible to contact your spouse, they will allow you to proceed with this service.

Divorce can be stressful and having a missing spouse may seem like you’ll never be able to proceed with your new life. However, there are resources out there to help you divorce your spouse, including attorneys with years of experience in divorce proceedings. If you’re not sure which resource to use to serve your missing spouse, reach out to us at Hoover ♦ Krepelka, LLC for a free consultation. We’ll do our best to get your case moving forward.

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