Vesting Title To Your Real Property

By Cozette Vergari

How you hold title to your real property is critical. There are several options one can choose from, when deciding how title should be vested, with each option having its own serious legal and tax ramifications. When purchasing real property, the buyer(s) should consult with a trust and estates attorney at the beginning of the escrow process. The grant deed prepared during escrow, transferring ownership from the seller(s) to the buyer(s), should be reviewed by that attorney, prior to execution, to insure title is being vested properly. The individual facts and circumstances relating to the buyer(s) estate will dictate the appropriate way to vest title. If you have already purchased real property, without seeking legal advice, this issue may still be reviewed by a trusts and estates attorney. If necessary, title can be changed through a new deed, transferring ownership into the proper vesting of title.

Cozette-Vergari2Cozette Vergari is an attorney in the Los Angeles area with an active Family Law practice since 1996. She has litigated and mediated in hundreds of family law cases and have frequently served as a court-appointed minors counsel.  She is a member of A Better Divorce Group and has been active in the Collaborative Divorce movement since 2003. Learn more about Cozette on her website or her blog.

Providing Spouses with the Power to Make Healthcare Decisions

By Cozette Vergari Originally published in LOS ANGELES LAWYER / NOVEMBER 2007

THE RIGHT TO MAKE HEALTHCARE DECISIONS is a protected individual right held solely by the patient. Recently, federal law and state law expanded the scope of exclusivity of this right to the privacy realm by limiting the sharing of patient information and records. Thus a patient’s spouse, domestic partner, and other family members face increasing obstacles when they seek information from the patient’s records-even though some healthcare providers, perhaps motivated by compassion, are disregarding the legal restrictions.

Nevertheless, spouses, in particular, should be very clear about their ability to make healthcare decisions on behalf of their partners. Spouses often assume that when their husband or wife becomes incapacitated and unable to make medical decisions, they have an automatic right to step into the shoes of their spouses. A patient’s incapacity-his or her inability to understand the nature and consequences of a decision or communicate a decision-may be temporary or permanent. Under either circumstances, the patient’s spouse is not statutorily authorized to be first in line to assume the power to make healthcare decisions for the incapacitated patient.

Indeed, the Probate Code statutes applicable to medical decisions grant no such power to spouses. The code only places a spouse inside the category or class of “family members,” with no priority expressly stated for the spouse. Though many healthcare facilities and providers may create a hierarchy within the class of family members and place the spouse at the top, there is no exclusive legal right for a spouse to make healthcare decisions for his or her incapacitated spouse.

It is well-established in case law that marital status alone does not create agency between the spouses. Nevertheless, spouses are fiduciaries under the law and owe a duty to one another. Still, this duty is not accompanied by a spouse’s authority to act as an agent in making healthcare decisions on behalf of his or her spouse.

Since a spouse has no express successor right to a patient’s right to make his or her own medical decisions, all family members have equal standing in the choice of treatment. A family member may challenge a spouse’s choices as not being in the best interest of the patient. It is even possible that a family member other than the one challenging the spouse may be given the right to make healthcare decisions on behalf of the patient. To further complicate matters, when a patient becomes incapacitated and a spouse’s decisions are challenged by a family member, or family members cannot reach a unanimous decision, or the choices made by the spouse or family members are not deemed by healthcare providers to be in the best interest of the patient, the healthcare providers may ultimately make those decisions. The power may not only shift away from the patient’s spouse but also from the patient’s entire family.

In an emergency, these issues too often lead to a crisis. All parties are frequently unprepared. A spouse facing an unanticipated need to make serious medical decisions for his or her spouse faces an overwhelming burden. The chaotic atmosphere can lead to the healthcare  providers assuming the power to make the necessary decisions. By con trast, a patient facing a scheduled surgery has the time not only to consider the issue of future healthcare decisions but also to choose to relinquish decision-making power, should the need arise, through a written or oral assignment to an agent or surrogate. It is an option that many clients should consider long before any medical care is required or contemplated.

AHCDs, Surrogacy, and Conservatorship

Spouses who seek to ensure their ability to make healthcare decisions for one another can make their wishes known in an Advance Health Care Directive (AHCD), a form of protection provided under the Probate Code. AHCDs have replaced the Durable Power of Attorney for Health Care, the former statutory device for this purpose. While AHCD forms may be obtained from healthcare providers and online sources, estate planning attorneys may prepare AHCDs as well, tailoring each directive to fit the circumstances of individual clients. An AHCD is often included in an estate-planning package with other estate documents such as a trust or a will.

Spouses can use an AHCD to express their carefully considered choices about future medical treatment and end-of-life issues. These choices may be modified from time to time with an updated AHCD. Among the topics that may be addressed in an AHCD include organ donation, the decision to allow or forbid an autopsy, pain management, and the use of life-sustaining equipment, among others. With an AHCD, a patient who becomes incapacitated temporarily or permanently will still be able to communicate his or her wishes through this writing, which can be legally relied upon by the patient’s designated agent and the healthcare providers.

The AHCD is the means by which a spouse can assert the authority, granted by his or her spouse, to make healthcare decisions on behalf of his or her incapacitated spouse. If the spouse is named as the sole agent in the AHCD, the spouse holds the exclusive right to assume this authority. If the spouse is named as a co-agent, the spouse will work with the other designated co-agent or agents in making the necessary decisions on behalf of the patient. In some cases, individuals do not want to name a spouse as an agent and will designate someone else. There are many reasons why this may be an individual’s choice. If there is no spouse, the individual will appoint whomever he or she deems appropriate.

The agent or co-agents must follow the patient’s directives. These decisions have been expressed in writing by the patient, who has given his or her agents the power to make sure the patient’s wishes are honored by the healthcare providers in the event the patient is incapacitated. No agent may ignore the expressed intent of the patient.

Another way a spouse can gain exclusive authority to make healthcare decisions on behalf of a husband or wife is through the patient’s oral appointment of surrogacy that is communicated to the healthcare providers. Absent an AHCD—the existence of which is often queried by a healthcare provider or facility during the patient intake or admissions process so that the document, if it exists, can be placed in the patient’s records—a patient may orally communicate his or her choice of a surrogate to act on behalf of the patient. This oral appointment, along with the patient’s specific medical wishes regarding treatment, should be noted in the patient’s records by the healthcare provider. The patient may name a spouse to act as the surrogate who will assume the healthcare decision-making power if the patient becomes incapacitated. The medical wishes of the patient, as recorded by the healthcare provider, must be followed and implemented under the authority of the surrogate spouse. The patient may name anyone as a surrogate to act on his or her behalf.

A surrogate, however, might not have the same expansive authority as an agent named in an AHCD. The patient may not have expressed his or her wishes regarding the full range of circumstances that could emerge during a period of incapacity. A decision by the surrogate that lacks a foundation of evidence of the patient’s intent may be disregarded by healthcare providers who deem the decision to not be in the best interests of the patient. An AHCD provides firmer ground for the spouse acting on behalf of his or her incapacitated spouse. A spouse acting as the patient’s agent under an AHCD has the power to implement the patient’s wishes, which have been expressly stated in a writing. This writing constitutes clear and convincing evidence of the patient’s intent.

A spouse appointed as a surrogate may be absolutely certain of what the patient’s philosophical or spiritual choices would be regarding treatment. However, in the absence of specific evidence of intent in the patient’s medical file, the surrogate is powerless. This is true not only when the patient does not address an issue in the oral communication of surrogacy but also when the oral communication is not properly recorded by the healthcare provider.

The least desirable option available for obtaining the right to make medical decisions on behalf of one’s spouse is a petition to the court for a conservatorship. A spouse or other interested party may request to be appointed as a conservator of the patient. This appointment is subject to objections from other parties. Through proper notice, the patient’s due process rights must be considered, along with those of extended family members. The court may decide to appoint an independent legal representative for the potential conservatee and may also choose to limit the scope of the conservator’s authority. This process can be untimely, cumbersome, and expensive. Conservatorship is a highly scrutinized area of the law and requires expertise.

The execution of an AHCD can avoid the need for a conservatorship. However, if the need for an appointment of a conservator arises, even when an AHCD exists, the good news is that the nomination of a conservator by the patient usually is embodied in the AHCD. Therefore, if a petition to the court is necessary, there will be no controversy regarding the appointee. The AHCD is clear and convincing evidence of the individual’s intent and choice of conservator.

Nonspousal Healthcare Authority

Everyone possesses the precious right to relinquish authority for his or her healthcare decisions, when incapacity arises, to a trusted family member, domestic partner, or friend, as well as a spouse. To do so requires express evidence of intent. The Probate Code generally protects the class of family members, but with no specificity. Domestic partners, if registered with the California secretary of state, are given status equivalent to that of a spouse under the Probate Code and the Family Code. Unregistered domestic partners and friends have no standing under state statutes.

Many middle-aged adults are caring for and assisting their elderly parents. An adult child might presume that he or she has the right to make medical decisions on behalf of the elderly parent when that parent lacks the capacity to do so. Under statutory law, however, no power for this purpose is granted specifically to the adult child. The adult child is only one in a class of family members. All family members have equal standing in the healthcare decisions involving the parent, unless the adult child has been authorized to make decisions on behalf of the patient through an AHCD, surrogacy, or a conservatorship.

Many couples choose to cohabit and not marry. Moreover, same-sex couples are unable to create a legal marital relationship, though they may gain marital rights if they register as same-sex domestic partners. Opposite-sex couples also may resister a domestic partnership if one or both of the partners are over the age of 62.

No matter how parties ultimately weigh the pros and the cons of establishing a legal domestic partnership, an AHCD provides a role for a domestic partner, whether registered or unregistered, in making medical decisions on behalf of his or her incapacitated partner. Further, for opposite-sex unmarried couples, an AHCD can establish their rights to make healthcare decisions for one another even as they choose to abstain from the legal entanglements of marriage.

Another relationship to consider is the parent seeking the authority to make medical decisions for an adult child. A parent is part of the class of family members, in which no one family member has any more power, under statutory law, than another. Further, many of the issues regarding a spouse’s limitations—absent the status of agent (under an AHCD), surrogate, or conservator—will also apply to the parent of an adult child if the adult child is incapacitated.

Once a child attains the age of 18, the right to make personal medical decisions becomes an exclusive right of that adult child. Even if the child is still attending high school, he or she gains this exclusive right at 18, and a parent does not automatically possess sole decision-making power when, for example, the child becomes unconscious due to injuries sustained in an automobile accident. Parents too often presume that the power to make medical decisions for their adult children is their right.

Absent an AHCD, parents fall into the class of family members with no more legal standing than another adult family member. Many hospitals create a hierarchy of decision makers and are likely to place the parents of unmarried young adults at the top of the list. However, there are no guarantees under statutory law. Even if the healthcare providers are listening to the parents, should they deem the parents’ decision to be not in the best interests of the patient, they are not obligated to implement the parents’ choices without an AHCD.

Generally, the most efficient way for an individual to protect his or her intent regarding healthcare in the event of incapacity is the execution of an AHCD. A well-constructed AHCD expresses medical choices clearly, appoints an agent or co-agents, appoints alternate agents, and nominates a conservator if needed. In this document, a person is able to direct and instruct his or her agent, who is not only authorized but obligated to carry out the person’s directives. The agent is empowered to speak—and the healthcare providers must listen.

One last consideration are the restrictions mandated by two laws: the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and California’s Patient Access to Medical Records Act. The major goal of these laws is to ensure the protection of an individual patient’s health information while balancing the need to provide quality healthcare. The violation of these statutes could result in substantial fines for a healthcare provider or facility.

While the laws have resulted in their intended effect of providing more protection for patient privacy, they have also led to more limited accessibility by a patient’s family members to the patient’s medical records. These records are strictly protected from disclosure to anyone other than the patient. To overcome this obstacle, a patient may execute a written authorization for use and disclosure of his or her information, enabling the patient’s agent to obtain needed information. This written authorization should accompany an AHCD. Estate-planning attorneys should make sure they execute the necessary instrument when they draft an AHCD.

With the execution of an AHCD and with the execution of an AHCD an attorney will help to empower a spouse, a domestic partner, or other family members to make medical decisions on behalf of an incapacitated loved one. The story of Terri Schiavo, which gained national media attention, was a grim illustration of what can happen to a family without a patient’s expressly written intentions regarding medical treatment. For nearly 16 years, Schiavo existed in a vegetative state while her parents and her spouse battled in court over her end-of-life care. Had Schiavo executed a document like an AHCD, this long nightmare could have been avoided. An AHCD will speak for the patient and will enable the designated agent to carry out the patient’s express wishes.

Cozette-Vergari2Cozette Vergari – principal of Vergari & Associates, has had an active Family Law practice since 1996. During that time, she has litigated and mediated in hundreds of family law cases and have frequently served as a court-appointed minors counsel. In 2003, she became active in the Collaborative Family Law movement, joining A Better Divorce. She regularly participates in workshops and seminars to solidify and further develop her expertise in Family Law with an emphasis in Collaborative Family Law. She is retained by clients as either a consultant, mediator, collaborative family law attorney, or litigator. Learn more about Cozette by visiting her blawg at vergariandassociates.wordpress.com. 

Mental Health of Children in Divorce

Child’s Testimony in Custody Cases

ELKINS TASK FORCE REFORMS – UNCERTAINTY ABOUT IMPLEMENTATION

An important change regarding children’s testimony in custody cases, (Family Code §3042).went into effect last year. “If a child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so it not in the child’s best interests. In that case the court shall state its reasons for that finding on the record.” Professionals have expressed concerns about how this is going to be implemented. There is a provision that a minor’s counsel, evaluator, an investigator or recommending mediator may help the court determine if a child wishes to express a preference.

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Proposals For Helping Judges in Court

PROPOSALS FOR HELPING JUDGES

  1. ESTABLISH A MEDIATION PANEL TO REDUCE NUMBER OF CASES FOR HEARINGS

The Superior Court maintains “panels” or lists of professionals who provide child custody evaluations services, parent education groups and co-parent counseling services. A similar list of professionals who provide mediation could be very helpful. The court could require the child custody mediators to provide pro bono services as a requirement for being on the list. Volunteer attorney mediators have already been helping settle cases at no cost to the court, although the ADR program at the court will be eliminated by this summer. The Los Angeles County Bar Association will be taking over the administration of this valuable program.

The Southwest District two years ago has added financial and mental health professionals to its volunteer mediation panel. This could complement the volunteer attorney mediators who serve in the central and many district courts. We in the legal community need to do more to resolve cases and reduce the demands on our family law bench officers.

  1. PROMOTE THE GREATER USE OF RESOLVING DISPUTES BEFORE GETTING TO THE COURTOOM: MEDIATION, COLLABORATIVE DIVORCE

Judge Scott Gordon, speaking at the Beverly Hills Bar Association’s “Meet the Judges Night,” cited consensual dispute resolution as an important response to the court’s budget problems. As described above in this article, there are many ways dissolutions can be resolved without burdening the court. The attorney who can settle cases early on, without having to prepare for depositions, trials or relying on child custody evaluations, will experience less stress and greater rewards as a family law practitioner.

  1. INCREASE THE COLLABORATION WITH PROFESSIONALS IN THE COMMUNITY FOR PARENTS

When the court suspended offering the Parents without Conflict Program by the Family Court Services staff, it freed up staff to be more available for the mandated program of custody mediation and evaluations. As important as the programs were, it was a judicious use of staff to provide the services required by statute.

The court has also eliminated the PACT classes at the courthouses, and instead directs parents to an online program.

The Family Court Services, known earlier as the Conciliation Court, has always been innovative. The Los Angeles Conciliation Court established one of the first marriage counseling programs in the nation, and was recognized by the Board of Supervisors for “saving” many marriages. As the community counselors became trained and more available, the court discontinued offering the marriage counseling services. We used to tag all of the 1284 forms for Confidential Counseling and write letters offering counseling  as a “last chance” to save the marriage. That is no longer being done and mental health professionals are now providing an important service that was originated in the courts.

Divorce Parenting groups are listed on the court’s website, and parents are now able to attend groups in their neighborhoods. Similar programs can be set up to complement the PACT (Parents and Children Together). The innovative and award-winning PACT program, originally conceived by Judge David Rothman and Commissioner Jill Robbins for Santa Monica, has been implemented in courthouses throughout the county. Maybe the time has come for the programs to be offered in local communities. The court should still require the education program, but by encouraging mental health professionals to run the programs, even more Family Court Service staff would be available to shorten the wait times for mediation and evaluations.

  1. RESTORE THE INTERN TRAINING PROGRAM FOR MEDIATION

In the 1980’s and 1990’s, interns from the masters and doctoral programs from the top area universities applied for the year-long program at the court. The selection process was similar to the process for hiring staff. Only the most qualified candidates were selected. These interns provided effective mediation services, sometimes more successful than the more experienced staff. Interns augmented the staff in the central district and in almost all the districts. Their services were provided at no cost to the court. Thousands of cases were settled.

In addition, the morale of the staff was enhanced by the idealistic, energetic and caring interns. One intern once showed me a research article citing the sometimes greater effectiveness of the interns when compared with the more experienced, older staff.

It is notable that the manager, supervisor and some of the most effective staff of the Family Court Services started their careers with the court as court interns. The USC School of Social Work has expressed interest in placing their graduate students at the Superior Court for their internship experience.

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Child’s Attorney in a Divorce

MINOR’S COUNSEL, THE ATTORNEY FOR THE CHILD – STILL CONTROVERSIAL

In more and more cases, the courts are relying on Minor’s Counsel to assist in the resolution of cases. In some jurisdictions, the use of minor’s counsel is almost routine. A number of factors have led to the greater use of attorneys for children. Because of the limited resources of Family Court Services, fewer cases are being resolved in mediation and it’s also taking longer for child custody evaluations. Even the “fast-track” evaluations have been renamed, in part because it’s not a speedy way of getting recommendations before the court. Minor’s Counsel often provides information to courts in a more timely manner. Often the newer bench officers are utilizing attorneys for children much more than the more experienced judges. Concerns about the greater use of Minor’s Counsel have long been raised by attorneys who believe too much rides on a quick assessment with no written report; mental health professionals have expressed concerns about some attorneys who aren’t experienced in interviewing and assessing the needs of young children. Concerns have also been raised about the uneven quality of the representation. Minimum and uniform training requirements have been established but the program still has its share of detractors.

Because Family Court Services no longer provides comprehensive child custody evaluations, along with the high cost of private evaluations, judges are appointing more Minor’s Counsel in custody cases. The courts appreciate how quickly these attorneys can provide input for the judges.

One of the Elkins Task Force recommendations was for more training for attorneys servicing as minor’s counsel. The next training for lawyers want to serve as Minor’s Counsel will be held in October; completion of the training will be a requirement for Minor’s Counsel Appointments.

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Collaborative Divorce: How a Parenting Plan Will Help Co-Parent

 SPECIAL MASTERS, OR PARENTING PLAN COORDINATORS – KEEPING SMALL ISSUES OUT OF THE COURTROOM

Not since the first training session for Special Masters over six years ago, has there been a training program in s Los Angeles County for attorneys and mental health professionals interested in becoming Special Masters. The Superior Court, along with the Association for Family and Conciliation Courts, AFCC, sponsored a training program in March. Matthew Sullivan, Ph.D. provided the training, followed by a panel, including Judge Robert Schnider, Lynette Robe, J.D., Angus Strachan, Ph.D. and Jane Shatz, Ph.D. A list of the attendees who attended the training, and perhaps the earlier training, will be developed.

The court may not order the assignment of a Special Master in a case, although if the parties and the attorneys stipulate, the court will usually sign the stipulated order. A few difficult cases require an inordinate amount of judicial resources and are wearing on all the professionals involved, not to mention the adverse effects on the children. Using a Special Master to make decisions regarding more routine conflicts may provide benefits for the families as well as for the bench officers. Mary Lund, Ph.D. and Lyn Robe and convened A Special Master committee and developed a stipulation for the use of the Special Master. It is now available on the Family Law Home Page of the Los Angeles County Bar Website: lacba.org. The use of the Special Master or Parenting Plan Coordinator is not without controversy. Some are concerned about the delegation of authority to non-judicial officers and the absence of the usual protections in a court hearing. The option, however of using an attorney or mental health professional to resolve minor issues may provide relief to the courtrooms that are excessively burdened.

 

See an excellent summary of the case law regarding the Parenting Plan Coordinator by Mara Berke, Law Offices of Marshall S. Zolla, “Planned Parenthood,” Los Angeles Lawyer, March 2009.

 

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Keeping Johnny out of the Middle

By Susan F Schwartz, L.C.S.W.

Avoid fighting when children are around

Practice Anger Management

  • Walk away when either party angry
  • Do deep breathing and positive self-talk to calm down
  • Allow partner to have the last word if necessary, just walk away!
  • Recognize people are not thinking clearly when angry and are saying things they don’t   really mean
  • Wait for calmness and only then return to the issue
  • Don’t confide in children

Be aware of the whereabouts of your children-don’t talk about issues they shouldn’t hear when they’re around.

Don’t bad mouth your spouse/ex to children, and coach family and friends not to talk poorly of him/her as well.

Always recognize, your spouse is the other parent of your children and deserves some respect if only for that reason.

Never let children be the carrier of your messages, and let the child know you will discuss the matter with the other parent if you are approached with a message from your child.  Don’t use this as an excuse to put your partner down in front of the child for sending the message.

Try to use the fact that no matter what is going on between you and your partner, your children need both of you and they need both of you to get along.

If divorced or divorcing, do whatever you can to maintain a respectful relationship with your children’s other parent.

Even if your ex is not playing fairly, don’t bite the bait and play dirty as well—Exercise restraint in not increasing tension.

Never give children details about what has happened between you and spouse.  They deserve to have a relationship with both of you and need to know they will be taken care of no matter what;   let them know they are loved by both parents and will always have access to both.

 

Divorce, Remarriage, and Taxes

By Ron J. Anfuso, CPA, ABV, CDFA, DABFA

The statistics are startling. According to the National Center for Health Statistics, more than half of the people who have been divorced remarry, although recent surveys have found that nearly 60% of these marriages break up as well.

Without a doubt, these events can make tax paying ever more complex. This article briefly explains the tax implications of divorce and remarriage.

Filing Status

Marital status is an important factor in determining income and estate tax liabilities. Marital status is determined on the last day of the tax year. So if a marriage is dissolved before the last day of the year, the parties may file for that year as either Single or Head of Household (if they qualify), which allows for lower tax rates than the alternative married-filing-separately status.

A taxpayer qualifies for Head of Household with the following:

  • The taxpayer is not married at the end of the year
  • The taxpayer pays more than one-half of the costs to maintain the household
  • A child who qualifies as a dependent lives with the taxpayer more than one-half of the year.

Spousal Support

Spousal support is deductible by the spouse paying it and taxable income to the spouse receiving it. In fact, the written instrument or divorce decree cannot include any type of verbiage excluding the payments from the income of the receiving spouse or rendering them non-deductible by the paying spouse.

Both spouses’ tax liabilities should be considered when determining what amounts are to be paid as support.

Only cash payments, including checks and money orders, qualify as spousal support. According to the IRS, the following cannot be used:

  • Transfers of services or property (including a debt instrument of a third party or an annuity contract
  • Execution of a debt instrument by the payor
  • The use of property

Occasionally, property settlements are used as a substitute for spousal support in an attempt to reduce payments. However, the IRS has written recapture rules to prevent such non-deductible property settlement payments from being deducted as spousal support. The rules come into effect to the extent that support payments decrease annually in excess of $15,000 during the first three calendar years after the judgment.

Any fees paid for obtaining spousal support advice and for tax advice in connection with the divorce are deductible as miscellaneous itemized deductions, but fees paid for the divorce itself generally are not deductible.

Spousal support liability stops upon the death of either spouse or upon the remarriage of the receiving spouse.

Child Support

Child support payments are not deductible by the payor spouse, nor are they income to the payee spouse. Payments must be designated as child support; if they are not, then the payments that are to be reduced when the child reaches majority, graduates from high school, leaves home, etc. will be re-characterized as child support.

Dependency Exemption

The parent who has custody of a child for the greater portion of the year (the custodial parent) is entitled to the dependency exemption and related child tax credits for the child unless that parent waives that right in writing. The specific IRS requirements provide that the child:

  • Must receive over half of his or her support during the calendar year from his or her parents
  • The parents must be divorced or legally separated under a decree of divorce or separate maintenance must be separated under a written separation agreement or must live apart at all times during the last six months of the calendar year
  • The child must be in custody of one or both parents for more than one-half of the calendar year.

For the non-custodial parent to take the dependency exemption, he or she must have a signed IRS Form 8332 from the custodial parent granting the exemption. Even if the custodial parent waives the exemption, that parent may still qualify for the earned income credit, child care credits, and head-of-household rate. To do so, the parent must maintain the home for the dependent child more than half of the year.

In the settlement and negotiation process, consider giving the dependency exemption to the spouse whom will benefit most. Exemptions are phased out for higher-income taxpayers.

Regardless of which parent gets the dependency exemption, however, the parent who pays the child’s medical expenses may claim the related deductions along with his or her own tax return.

Child Care Credit

There is a child care credit available for the custodial parent who pays child or dependent care expenses so that the person can be gainfully employed. In order to claim this credit, the taxpayer must maintain a household that is the home of at least one qualifying child. The child care credit is not available to the non-custodial parent even if he or she is entitled to claim the exemption for the child.

To be sure, divorce and remarriage cause taxation issues that need to be carefully planned for. Those finding themselves in such situations should consult a professional tax planner to insure all aspects are being considered.

Bio for Ron J. Anfuso, CPA, ABV, CDFA, DABFA

Ron J. Anfuso, CPA, ABV, CDFA, DABFA is a Rancho Palos Verdes-based Forensic Accountant whose services include analysis of financial, accounting and tax aspects of marital dissolution matters, including business valuations, Pereira apportionment of business interests, Van Camp analyses, determination of gross cash flow available for support, marital standard of living analyses, and tracing engagements for the purposes of determining post-separation reimbursements, family code §2640 reimbursements and characterization of property as community or separate. Additionally, he has performed services regarding various other family law issues including allocation of interest in pension plans and apportionment of interests in real property (Moore/Marsden calculations) and other special projects.

Mr. Anfuso has testified as an expert witness in family law and civil/commercial litigation matters in Los Angeles, Orange and Santa Clara Superior Courts. Although traditional litigation involves court appearances, Mr. Anfuso is also versed in The Collaborative Divorce process and assists many couples in a resolution of the financial matters of their divorces without the necessity of a court battle.

In addition to being a Certified Public Accountant, Mr. Anfuso has earned the designations of Accredited in Business Valuation, Certified Divorce Financial Analyst and Diplomate of American Board of Forensic Accounting.

Telling the Children

By Steven Reiter Ph.D. and Paula Van Doren LCSW

Under the best of circumstances divorce is a profound trauma for everyone involved. Telling the Children  is a moment that the child (unless they are very young) will remember for the rest of their lives.  WE have a very strong bias.  Our bias is that the welfare of the children is primary.  Their needs should be put in the forefront.  In this brief article we wish to present information to assist you in helping your children to receive and to respond to the traumatic news that their parents are divorcing.  Let us make that point very clear. YOU ARE DIVORCING EACH OTHER BUT YOU ARE NOT DIVORCING YOUR CHILDREN. This is such an important concept that it cannot be over emphasized.

There is a logical sequence to telling the children.  The first step is to decide that you are getting a divorce.  Telling the children that you are thinking about a divorce before you are definite and resolute in your decision will only threaten and confuse the children.  Hold off telling them until you are absolutely sure. Once you have finalized the decision to divorce, decided it is then time to talk with your spouse and make a plan on what and how to tell the children.  Don’t improvise.  You and your spouse should decide beforehand what you will tell the children and stick to it.    Avoid telling them on a school day.  They may be distracted at school, and they need time to let it sink in.  Anticipate what questions your kids may ask and have your answers prepared.  Telling the children is not a one-time conversation but a process.  The goal is to not only tell the children what you have decided but to give them an opportunity to ask questions and to share their feelings.   Remember that you have been thinking about this for quite a while and have had a chance to sort this through for yourself.  This is new for your children and they need time to process the information.   The point is to communicate to your children that you are available for them emotionally and you are very willing to listen.

In developing a plan to tell your children there are many points to consider.  Please see the list below:

    • Tell all your children together with the both of you present.
    • Make your presentation simple, direct, and at a level appropriate with your child’s ability to comprehend.
    • Do not criticize, condemn or blame your spouse.   This will only hurt your children.
    • Tell your children as soon as possible after you have decided so that they do not hear it from someone else.
    • Make it very clear to the children that they are not responsible, in any way, for the divorce or could they have prevented it.
    • Let your children know that they continue to be part of a family, in which their parents love them very much, even though their parents will live in separate residences.
    • Let your children know that you are not going to ask them to take sides.
    • Tell your children that, as their parents, you will work together to take care of them and provide for them.
    • Let them know what will change in their life and what will stay the same.
    • Encourage your child to ask questions, and assure them they can ask questions later too.
    • Validate your child’s thoughts and feelings.
    • Ask the children what they know about divorce.  This information may have a direct impact on how they process your divorce.  If they have seen or heard about the traumas of divorce you can use the opportunity to educate them about what you are doing as opposed to and different from what they have heard or fear.
    • Reassure your children that you are divorcing each other but that you are not divorcing them.
    • Don’t make promises that you can’t keep.
    • Do not lie to your children.
    • Reassure them that you still love them.
    • Your children’s emotional responses usually depend on their age, and can vary from a barrage of questions and profound emotion to an apparent indifference and no questions.  It is common for their feelings to be expressed in their behavior.  They may ask questions about the pragmatics of the change.

For example:

    • “Will I go to the same school?”
    • “Who will take care of me when I get home?”
    • “Will I have my own room?”
    • “Do we have to move?”
    • “Will I have to make new friends?”
    • “Where will I live?”
    • “Will I ever see Daddy (Mommy) again?
    • “Will I stay with my brothers and sisters?
    • “If I’m really good and never act up again, will Daddy (Mommy) come back?
    • “What did I do to cause this?  I’ll make sure I never do that again, then we can be a family again.”
    • Be prepared for the questions.  If you don’t know the answer to a question tell your child directly that you don’t know but that you will find out and let them know.
    • Your non-verbal communications are very important and in many cases communicate a great deal more than you words.  Be aware of what you are communicating with your gestures, posture, and facial expressions.  Make sure that these non-verbal communications are in line with the goal of being helpful to the children.
    • Don’t tell the unvarnished truth.  Your children do not need to suffer all of the intimate details.

Remember that this is not a single conversation but the beginning of a process in which there may be many discussions during which you assist your child in making a positive adjustment to your divorce.  Be loving, be patient, be compassionate, and be kind.  It is very common to want to reveal to the children the “Real Reason” for the divorce not a generic comment that “We don’t love each other any more”.  Don’t do it.  If you give the children the intimate details of the divorce, all of the violations, and betrayals, the children can be hurt by your disclosures, and feel confused and obligated to dislike the offending spouse.  Below is a sample introduction:

“Your mom and I want to talk to you.  We have been trying for a long time to work out the problems in our marriage.  We have been unable to fix them.  Our differences are so great that we have decided to get a divorce.  The decision to get a divorce has been a very difficult one.  We want you to know that although we will be living in separate houses that  we continue to love you very much.  We will always love and care for you.  Please know that our love for you is very strong even though we will be living in separate houses.”

The information presented in this brief article is only a guideline.  Your good judgment and intimate knowledge of you children are the basis for helping them through the process of telling the Children.  If you would like some personal consultation in the area of helping the children through the divorce please contact any of the coaches at A Better Divorce.

Further Reading:

Berry, Diane M. (2004). Child Friendly Divorce. Manitowic, Wisconsin: Blue Waters Publication.

Lansky, Vicki. (1996). Vicki Lansky’s Divorce Book for Parents. Deephaven, MN: The Book Peddlers.

Long, Nicholas. (2002). Making Divorce Easier on Your Child. New York: Contemporary Books.