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How LGBT Couples can Benefit From Mediation for Separation or Divorce

In San Diego, July is the time to celebrate Pride in the LGBT community. The annual San Diego Pride Parade is among the largest in the United States and it took place on July 15, 2017. When the June 26, 2015 US Supreme Court ruling finally made same-sex marriage legal in all 50 states, LGBT couples celebrated around the country and many were finally able to make their commitment to each other legal. As more LGBT couples live in a domestic relationship or get married, they may experience the same rewards and challenges of opposite sex marriages, including the possibility of separation and divorce down the road. These events can be difficult and stressful for many couples, and LGBT couples are not exempt.

Whether LGBT couples decide to dissolve a domestic partnership or a marriage, they need to make decisions similar to heterosexual couples regarding many aspects of their relationship. These include the division of assets, personal property and debt, spousal support, child support and custody, pet custody, division of retirement and pension plans, and any issues related to health and life insurance. As various states continue to grant (or sometimes challenge) equal rights to the LGBT community, it is important for LGBT couples to seek legal guidance and protection that will stand the test of time.

Laws regarding LGBT couples and families’ rights are changing fast and they can differ greatly from state to state, which can make conflict resolution even more complicated if couples move from one state to another. For this reason, there has been a rise in the number of attorneys and family mediators who specialize in LGBT relationships and can address the specific needs of this community. If you are an LGBT couple who decided to separate, it is important to choose a mediator who is highly knowledgeable in LGBT legal separation, domestic partnership termination, and marriage dissolution, and who has a lot of experience understanding and helping LGBT couples and their unique situations. A good way to find out if a mediator is a good match for you is to take advantage of a mediator’s free first consultation (link to blog post How to choose the right divorce mediator for you). By asking specific questions, you can decide how much experience a mediator has in addressing the diverse needs of today’s ever-changing families with sensitivity and understanding. You should always ask if the mediator is specifically trained in same-sex couples issues and is sensitive to the nuances in these relationships.

Both heterosexual couples and LGBT couples can benefit from mediation instead of litigating through attorneys. In many cases, mediation will be less expensive, less hostile and the divorce process will be completed in less time. Divorce and separation mediation enables couples to remain in control throughout the process and handle their unique issues personally. Through mediation, same-sex couples can make important life decisions that they will be able to live with, instead of relying on third-party decisions made by attorneys or the courts.

To learn more about the mediation process, complete our request for a free online evaluation, and to receive a free 30-minute phone consultation, call 619-702-9174.

When is it time to call Children Protection Services?

divorce-child-protection-servicesEach state has its own version of Child Protection Services, more commonly known as CPS. In California, CPS is part of a county’s Social Services Department. The department directs any reporters of possible child abuse or neglect to call right away to report it.

Who to call?

Depending on the situation, there are different phone numbers to call:

-  In San Diego, if you suspect that a child has been abused or appears to be at risk of being abused, you should call the CPS hotline at (858)560-2191 or toll-free (800)344-6000. 
-  However, if you know that the abuse has already occurred, you are asked to call local law enforcement.
-  Finally, if you witness the child abuse in progress, you should call 911.

Who can call CPS?

Many people think they have to be related to the child in order to report child abuse or neglect. In reality, anyone can call CPS, and by law some people are legally mandated to report it, including child care providers, educators, medical professionals, mental health professionals, clergy members, and law enforcement officers.

What are the reasons for calling CPS?

Calling CPS should always be taken seriously and should never be done out of spite to punish a parent. However, not reporting child abuse or neglect could have some very serious consequences on a child, so it’s important call if you have any “reasonable suspicion” regarding a child’s health and well-being. If you are worried about your own safety, be aware that CPS keeps the reporter’s name and contact information anonymous, so the abuser will not know who made the call. The main reasons for calling CPS are:

-  A physical injury purposely inflicted on a child (not by accident) 
-  The willful harming or endangerment of a child
-  Any cruel or inhumane corporal punishment resulting in a traumatic condition|
-  The sexual abuse, assault, or exploitation of a child
-  The negligent treatment or maltreatment of a child by a person responsible for the child’s welfare, whether the negligence is accidental or purposeful

Unless you witness the child abuse or neglect as it happens, it is sometimes hard to know if it is taking place or not. Here are a few warning signs to look for if you are suspecting a child is being mistreated:

-  A child with frequent injuries or unexplained bruises, who shies away from touch and flinches at sudden movements, or is afraid to go home, may be experiencing physical abuse
-  A child who seems anxious, fearful, withdrawn, lacking in attachment to the parent, or shows a range of extreme behaviors, may be emotionally abused
-  A child wearing filthy or inappropriate clothes for the weather, displaying bad hygiene, being left alone or unsupervised for long periods of time, or missing school, may be experiencing neglect
-  A child who displays knowledge or interest in sexual acts inappropriate to his/her age, or tries to avoid a specific person, or runs away from home, may be the victim of sexual abuse

When in doubt, it’s important to be on the safe side and make the call to CPS. A child won’t automatically be taken away without CPS investigating the situation first, so the sooner the call happens, the better.

To learn more about the mediation process, complete our request for a free online evaluation, and to receive a free 30-minute phone consultation, visit us at www.afairway.com, or call 619-702-9174.

 

A Fair Way Mediation Featured on Impact Makers Radio

In this episode of “Let’s Talk Divorce!” Rich Gordon, Founder of A FAIR WAY MEDIATION CENTER in the Greater San Diego Area, CA, talks about how being a Family Law Divorce Mediator drives his passion for helping couples to break up nicely.

Rich, in a behind the scenes conversation with Radio Talk Show Host, Stewart Andrew Alexander, “A Fair Way Mediation has considerable experience mediating disputes in traditional marriages, same sex marriages, domestic partnerships, and alternative relationships throughout the San Diego County.

Listen to Radio Show HERE

 

How Divorce Affects Social Security Benefits

divorce-and-social-security-benefitsDuring the divorce process, all community assets, including bank accounts, personal property items, retirement accounts and pension plans need to be equitably divided between spouses. Although Social Security benefits are collected during retirement, they are treated differently from other retirement accounts. In fact, by Federal law Social Security benefits are not considered an asset and cannot be divided in a state court. Many rules affect eligibility for spousal Social Security benefits, i.e. benefits based on the other spouse's work record, so it is important to understand how they work and affect a person’s individual situation.

First of all, if the marriage lasted fewer than 10 years, neither spouse will be able to collect Social Security benefits from the other spouse’s Social Security account. However, if the marriage lasted 10 years or more, Social Security benefits can be collected the same way as if spouses were still married to each other. Two main rules are used first to determine if a spouse qualifies: if the ex-spouse is living, or if he/she is deceased.

If the former spouse is still living, an ex-spouse is eligible for spousal Social Security benefits if these three rules apply:

-  The marriage lasted 10 years or longer
-  The spouse seeking benefits is currently unmarried
-  The spouse seeking benefits is 62 or older and is already receiving benefits

The ex-spouse chooses to collect whichever Social Security benefits are higher, but he/she cannot collect both people’s benefits. A divorced spouse’s benefits are equal to 50% of the other spouse’s full retirement amount and can start immediately if the other spouse has started collecting his/her own Social Security benefits, or two years after the divorce if the other spouse has not started collecting yet. It is important to note that the collection of these benefits is not affected even if the other (receiving) spouse has remarried.

If the former spouse is deceased, an ex-spouse is eligible for spousal Social Security benefits if these rules apply:

-  The marriage lasted 10 years or longer
-  The spouse seeking benefits is 60 or older, or is disabled
-  The spouse’s own Social Security benefits benefit would not be higher than what he/she could claim on the ex-spouse's record

However, it is essential to remember one additional rule that is applied if the other spouse is deceased. If the spouse seeking benefits remarries before the age of 60 (or 50 if disabled), benefits become unavailable. However, if the spouse seeking benefits remarries after age 60 (or 50 if disabled), then spousal Social Security benefits can be collected.

One final and very important rule was established by the Bipartisan Budget Act of 2015.

If the spouse seeking benefits was born before January 2, 1954 and has already reached full retirement age, he/she can decide to receive only the other spouse’s benefit and delay receiving his/her retirement benefit until age 70. However, if the spouse seeking benefits was born on or after January 2, 1954, that option is not available. Filing for one benefit will automatically mean filing for both spousal and his/her own Social Security benefits.

It is good to know that should a spouse claim benefits from their former spouse's account it will NOT reduce the monthly check of the other. It is a huge loophole in the system which Congress refuses to close.

To learn more about the mediation process, complete our request for a free online evaluation, and to receive a free 30-minute phone consultation, visit us at www.afairway.com, or call 619-702-9174.

Who Has Jurisdiction When Child is Born to a Native American Parent?

When a child is born to a Native American parent, or is identified as a member of a Native American tribe, specific guidelines need to be followed in a number of custody matters. These mandatory guidelines were first passed into law in 1978 as the Indian Child Welfare Act (ICWA). This federal law governs jurisdiction over the removal of American Indian and Alaska Native children from their parents and helps them remain connected to their families, cultures, and communities.

This law was greatly needed at a time when a high number (up to 35%) of Native American children were being removed from their homes by state courts, welfare agencies, and private adoption agencies and placed in non-Indian homes, where no Indian culture was present. The ICWA’s purpose was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families". In order to do that, the ICWA transfers decisions regarding most child custody proceedings to tribal governments when the child (any unmarried person under age eighteen) resides on reservation or tribal land, and is a member of or eligible for membership in a federally recognized tribe. A number of states have enacted their own policies, which complement the federal ICWA and provide additional protections to Native American children.

It is very important for parents to understand which areas of child custody the ICWA applies to, and which areas are excluded. The ICWA specifically states that state courts have no jurisdiction over the following child custody proceedings: 

• Guardianships
• Removal and foster care placements
• Adoptive placements
• Voluntary and involuntary termination of parental rights
• Minor juvenile delinquency cases
• Divorce proceedings or custody disputes in which neither parent will obtain custody


It is important to note that a biological parent (Indian or non-Indian) has the right to object to and veto a proposed transfer of a child custody case to tribal court, but the objection might be denied by the state court.


In contrast, the ICWA does not cover: 

• Criminal juvenile delinquency cases
• Divorce proceedings or custody disputes between two parents

This last exception means that, even if both parents and their child are Native Americans and reside on tribal land, they still have to follow state law if they file for divorce and need to make decisions regarding legal and physical custody, and child support. Mediation is an option available to all couples and it can help resolving all issues surrounding the divorce while minimizing conflict. An experienced divorce mediator will guide parents through not only child custody and child support, but also spousal support (alimony), asset and debt division, retirement and pension plan division, and any other issues. Divorce mediation is fast and usually helps couples reach a final agreement in just a few months.

To learn more about the mediation process, complete our request for a free online evaluation, and to receive a free 30-minute phone consultation, visit us at www.afairway.com, or call 619-702-9174.

Child Support and Taxes: Is Child Support Considered Income for the Custodial Parent and Therefore Taxable?

child-support-and-taxesDuring the divorce process in California, parents need to agree on a visitation plan for their children, i.e. how much time the children will spend with each parent, as well the amount of child support to be paid by one or both parents. California courts want to ensure that a child’s basic needs, such as housing, food and clothing, education expenses, medical expenses, and any other reasonable expenses are covered. Usually, child support is paid to the parent with whom the child lives most of the time and child support amounts are not arbitrary. Instead, they are based on specific California Child Support Guidelines considering both parents’ incomes and the percentage of time children spend with each parent.

Federal tax regulations are very clear when it comes to child support and taxes. For federal income tax purposes, child support is always tax-free. This means that neither the custodial parent who receives child support payments, nor the child, owes any taxes on those payments. As for the non-custodial parent who makes those child support payments, they are not classified as tax-deductible. One very important consideration for custodial parents is to make sure that those monthly payments are specifically designated as “child support” in the final divorce agreement, also known as marital separation agreement (MSA). Child support payments should be completely separated from spousal support payments and not lumped together as “family support”. This is an important step to follow for one major reason: while child support is tax-deductible, spousal support is considered income and taxable. The final agreement between parents needs to be very clear on identifying which payments are for child support and which ones are for spousal support, so that custodial parents do not experience unnecessary tax burdens.

An additional tax consideration that parents must agree on in their divorce agreement is which parent will claim the children as dependents on their tax returns. For a parent to be eligible for that exemption, he/she needs to provide at least 50% of the children's financial support during the tax year (this includes the amount the money spent on housing, utilities, food, clothing, etc). Only one of the parents can claim this dependent exemption and the IRS does check that this rule is followed so both parents do not claim it at the same time. Therefore, it is essential for parents to spell out in their final divorce agreement which parent will claim the dependent exemption. Parents who share 50/50 custody sometimes agree to alternate which year they will claim the dependent exemption. Individual situations can be complicated so it wise to discuss these details with either a tax accountant or a competent divorce mediator before deciding which tax arrangement will be best for each of the two households.

To learn more about the mediation process, complete our request for a free online evaluation, and to receive a free 30-minute phone consultation, visit us at www.afairway.com, or call 619-702-9174.