A couple going over divorce papers indicating Complex Family Law Issues

[Source: Gurvey’s Law K ABC-AM 790 Talk Radio]


Celebrity Divorce Lawyer Explains Complex Family Law Issues on Gurvey’s Law podcast which aired on K ABC AM 790 Talk Radio.

Christopher C. Melcher is our family law expert and celebrity divorce lawyer today. He’s of Walzer Melcher LLP which was named best family law firm by Chambers and Partners, and you can find them at walzermelcher.com. His partner, Peter M. Walzer, has been on our show and did a great job. Chris has been on just about every television station you can think of, making wonderful commentary on these interesting family law issues. He’s been on CNN, 60 minutes, ABC, Court TV, ET, Bloomberg, Fox News, and the list is endless. He’s also provided approximately 150 continuous education programs, which is for lawyers to learn about the law in family law. He’s published as an author numerous articles. He has attained a lot of successes with notoriety, a lot of celebrity clients. Financial aspects is one of his fortes. We want to welcome, Ask the Lawyer, Chris Melcher to Gurvey’s Law.

Chris Melcher: Thanks, Alan. I appreciate you having me on the show. I’m super excited to talk about this area, because it really touches everyone’s life, it crosses every boundary. I’m representing people who are very wealthy going through a high net worth divorce and that’s been my niche. But what I’ve found is that all problems are the same. It doesn’t matter how much money you have, where you come from. The hurt is the same. The kids are the same. This is just such an ultra-personal area of the law.  I’m hoping to get some good questions that we can clear up for folks.

Alan Gurvey:  Yeah, and we appreciate you offering your free advice. Because as you said, you’ve represented a lot of wealthy people, and they probably pay you a pretty penny for your advice. Now, you’ve said that these issues affect so many people, but Lauren said it doesn’t affect her. So I’m going to ask Lauren-

Lauren Sivan:  You know what? It’s true. I’ve never had to go through the family court system, but I’ve had so many friends who have. And it ruins them. It completely ruins them. A lot of the friends I’ve had that have gone through a divorce, particularly with kids, they all said the same thing initially, “We’re going to do it amicably. We both agree that we want this divorce.” And something happens when they go through the family court system that turns it very not amicable very quickly. I don’t know exactly what it is. You probably know better than me. But it just seems like it, unlike the regular court system, family court system is so much more rife, I think, with emotion, perhaps. Is that what gums up the works?

Chris Melcher:  Well, sure. These are the most personal of disputes. People who once were in love, had property together, kids together, and now are breaking up. There may have been an affair. So we’re having trust issues, communication issues, respect issues. And now we’re put into a court battle, where how are they going to get out of that when they don’t trust each other, they don’t talk and they have no respect.

Lauren Sivan: Yeah.

Chris Melcher: So as a lawyer, that’s one of the things that I work on, is those core problems that are driving the dispute, rather than just going in and figuring out what the custody plan is going to be, or how things are going to be divided. But people are scared. This is their future. Everything was bound together, and now it’s being torn apart, and they’re understandably anxious about how are they going to live and what it’s going to look like, and is there going to be new boyfriend/girlfriend on scene and taking a different role in the kids’ life. So really, I understand where it’s coming from, and these people are stuck, and they can’t move forward with their life until they get it resolved.

Lauren Sivan: Chris, how much does a prenup help before you go through this? What can you really outline in there besides the financial stuff?

Chris Melcher: Well, a prenup can deal with property rights. So if we don’t have a pre-marital agreement in California, all property acquired during marriage is going to be community, which is going to be split 50/50. Things that the spouse owned before marriage or inherited during marriage is going to be separate, meaning off-limits. A prenup can change that so that each spouse’s earnings during marriage is theirs separately, so there’s not going to be any marital property to divide. We can also limit or waive spousal support in a prenup. I can see cases where these are beneficial, particularly if somebody’s getting a second marriage, and they have kids from a prior relationship. Well, they have a prior obligation. They need to make sure that those children are provided for, inheritance rights are protected, and now they’re coming in with a new obligation to new spouse. So I think a prenup can manage that.

But with a couple that’s just starting out, I’ll ask them, “Well, what is your goal?” And they usually say, “Well, it’s to be protected in the case of a divorce.” And I’ll say, “Well, really? I thought you were going to say it was to have a lifelong marriage.” And they’ll say, “Of course, that.” Well, how is this agreement that you want me to draft serve your ultimate purpose, and are you interjecting some lack of trust from the beginning?

Lauren Sivan: Really? So you actually try and talk people out of it, if it’s a first marriage and you both are coming in kind of equal?

Chris Melcher:  I do, because this is an equal partnership that we’re entering into, and if we’re coming in on unequal grounds, we may be setting that marriage off on a bad foot.

Alan Gurvey: You know, Chris, and we have to take a quick break, but I hate to cross-examine you, but I’ve done a lot of research on you, and I watched a clip from one of the local stations, and the question asked of you is, “Should people engage in prenup?” And your word was, “Always.” Are you lying now, or were you lying then?

Lauren Sivan:  Wow.

Chris Melcher:  That is brutal. Brutal, brutal, brutal.

Alan Gurvey:  Well, you can handle it.

Chris Melcher: Well, always when needed, and never when not needed.

Alan Gurvey:   Very smart answer.

Lauren Sivan:  Let’s go to Darren in Los Angeles. We’ll take his call first. Darren, do you have a legal question for Chris Melcher?

Darren:   My wife and I are in the middle of a no-contest divorce. Sorry, this is a really boring financial question, really.

Lauren Sivan:  That’s okay, just get to it.

Darren:  My wife and I are in the middle of a no-contest divorce, and she has a 403(b) through her job that she works at a not-for-profit which, basically it’s a 401(k). We’ve agreed to kind of basically just split it down the middle. Can you explain to me what that is, in layman’s terms, and is that the best thing to do for this situation?

Chris Melcher:   Sure, Darren. So it’s a great question. So what we’re talking about is a division of a retirement account in a divorce. So those retirement assets are pre-tax, meaning that the money that we put into the retirement plan is income that we’ve not yet been taxed on. If we take the money out, we are taxed on it, and if we take it out before retirement, we’re penalized. But the IRS recognizes it in a divorce, that the community portion of that can be divided and transferred over to a spouse or ex-spouse free of taxes or penalties. When she gets her share and eventually gets of retirement age, she can take it out without a penalty.

So we have to use, though, a special kind of order, it’s a Qualified Domestic Relations Order, we call it QUADRO. And that is necessary to ensure that you’re not taxed on it. If you did not have the QUADRO, then the IRS would say, “Hey, you took a withdrawal and you have to pay taxes on the money that you paid your wife.” So yes, you do need that. Many of the plan administrators have a form already, so you can just fill in the blank there hopefully, and save some fees by using the off-the-shelf on that they already have. That’s a great question, Darren, and I wish you the best of luck.

Alan Gurvey: Let’s take Janet in Pasadena.

Janet:  Well, there’s a lot of backstory, but the situation that I’m in now is, my ex owes about five years’ child support, back child support, and he’s finally agreeing to tap into this inheritance that he got from his father. But the divorce isn’t final, so everything is still joined. So it’s got a joiner on it. He can’t access anything until the divorce is final, which is going to take a while. It’s just dragged out. So I’ve started filling out paperwork to go to the court to ask for them to release, somehow help us release these funds, because I’m in pretty bad shape from COVID, financially. He’s been living in his car. So we really need to get access to this money. I’m just wondering how possible it is? I mean, I’ve got the FL-300. I’m doing this all myself. I don’t have an attorney anymore.

How possible is it to get access to these funds?

Chris Melcher:  If you already have an order for support, it’s just a matter of enforcing it. So it’s my understanding if the court’s already ordered child support, he’s just not paying it, so you don’t really need an FL-300, which is like a motion to set support. What you need is to use judgment enforcement forms, and that would be a Writ of Execution, a Writ of Attachment, Abstract of Judgment. You can look under California Courts website, so if you go to California Courts, you look under forms, you’re going to see a section called Enforcement of Judgment. And there’ll be self-help information on there.

All you need to do is enforce the judgment you have. If he has a job, you can get money from his paycheck. If he owns real estate, which I guess he doesn’t if he’s living in his car, but you could put a lien on it. If he has that retirement in a bank account, they can what’s called levy from that bank account. So you’re in a very powerful position. There is a self-help center for the LA court that can provide that downtown. There’s also Harriett Buhai, and Levitt & Quinn. So Harriett Buhai and Levitt & Quinn, and everyone that’s listening to this may apply, too, but they provide free legal services for family law matters. So I’d suggest contacting them, get the guidance you need. But you’re in great shape, Janet, on being able to enforce that, it sounds like.

Janet:  I’ve gone through the self-help with Pasadena. They’re the ones that told me to file the FL-300 and several other forms. But you’re saying I don’t have to do that, since I already have an order.

Chris Melcher:  That’s right. You don’t need another order for an order. What you need is to enforce the order that you already have. So unless there’s a question about what he owes, so if the order says he’ll pay a percentage of his income, then you may need an order to determine what his income was, so you know the ultimate amount of support. But if it says-

Janet:   He doesn’t have income, but he does have this retirement account that his father left to him, which would more than cover this back child support.

Alan Gurvey:   Okay. Well, I think Chris answered that. That’s some good advice, and we wish you the best and that’s something that I think a lot of people, when they represent themselves, a lot of times people say you have a fool for a lawyer. Lauren, you’re supposed to smile at that, because it is tough. And Chris, wouldn’t you agree that representing yourself in a matter that can be complicated like a family law matter…

Chris Melcher: It’s hard. I mean, I’m a lawyer, I’m doing this 26 years, and I’m trained, and I struggle every day with these legal questions. It’s complex, and so but many people don’t have a choice. They can’t afford to… I probably couldn’t afford it myself, if I went through a divorce. So I understand that. But there is good information out there, self-help wise, those two organizations, Harriett Buhai and Levitt & Quinn are fantastic non-profits that can provide some help. But yeah, Janet has a very complex problem, for sure.

Lauren Sivan:                Rick in Whittier, he’s been on the line for a while. Rick, you got a question, and you need some advice. What is it?

Rick:   I am a victim of domestic violence. So yes, she was arrested during the COVID issue and she was cited with a ticket, and I’m awaiting for the DA to drop me a letter to say, yes or no, we’re going to take the case. Very troubling. So no, I don’t want to serve her yet. I have two children, 17 and 14. Now, the 14-year-old’s going to need a lot of care, because I believe she’s going to be diagnosed as autistic.  She has 401(k)s, 403(b)s, I’m not exactly sure what they are. But she has a few of them. Okay, my question is, what is my right or what can I get for spousal support? Now, I’ve ready many, many things. It determines on your lifestyle, this, that, the pay, and everything. [crosstalk].

Chris Melcher:  First, we’re going to set child support, so we’ll take her income, compare it to yours, the amount of time that each of you spend with the children, and there’s a calculator. And a popular program’s called Dissomaster. You plug that in, and it figures out, at the end of the day, if she’s the higher wage earner, how much she has left over after paying you child support and paying taxes. It’s on that net that alimony or spousal support is then set. On a temporary basis, it could be as high as 40% of her net. On a more longterm basis, it might be 20%. So, that would give you some kind of range to look at.

The court will consider a whole bunch of factors, the length of the marriage, it’s going to consider your sight issues, it’s going to consider the domestic violence. Normally, if we have a marriage less than 10 years, the duration of alimony is half the length of the marriage, so you might be at four-and-a-half years, because you’re under the 10-year mark. But, because the domestic violence and your disability, the court could, probably would, order support for an indefinite duration, until you remarried or either of you died or you no longer had a need for support. So I would hold out for an indefinite term of spousal support, rather than being stuck at the four-and-a-half years.

Lauren Sivan:  Carol, here in Southern California. Carol has a question, as well, about a family problem. Carol?

Carol:  Thank you. I was wondering, a few years ago, about 20 years ago, I had a divorce. I was young. The judge asked me, I went in without an attorney, if I wanted my husband’s medical or his retirement or spousal support, and I said, “No, I’m doing just fine, thank you.” He has passed away, and he worked for, earning good money. What the judge did, apparently understanding that I was young and kind of dumb, he said, “I’m going to dissolve the marriage, but I’m going to leave the property distribution open.”

But, my husband passed away in 2017, my ex-husband. So I was wondering, his retirement office told me that I don’t appear as a recipient of his retirement on their records, but since the marriage was dissolved, but the property was not distributed over 20 years ago, could I still go back to court and try to get something?

Chris Melcher: Yeah, Carol. You may be able to do that. Just depends on what your judgment says. Since you were divorced when he died, you’re not a surviving spouse under the plan, under the retirement plan. So you don’t have automatic rights there. But, Family Code Section, and if you write this down Family Code Section 2556, says that property that’s not divided in a divorce judgment can be divided later, that the court has indefinite reserve jurisdiction over that. So take a look at 2556. Look at your judgment. If the judgment does not award him that pension, or retirement plan, and he acquired rights in the plan during your marriage to him, it’s what’s called an omitted asset. So you could go into court and ask for that. Now that he’s dead though, you’re going to have to act quickly, and you may need to make a creditor’s claim against his estate. So you’d want to make sure you’re acting quickly, make that creditor’s claim against his estate before its distributed and the money’s gone.

Carol: Okay, so you said a creditor’s claim, 2556, a creditor’s claim, and that’s all I need to know, those two terms?

Chris Melcher: So Family Code 2556 is what gives the court the authority to divide the property so long after a divorce judgment was entered, but since he’s deceased, you’re now dealing with the estate of your ex-husband, rather than your ex-husband. So there’s a pot of money there hopefully still, and you would show up there and make a creditor’s claim against his estate, saying that part of the money that he was holding at his death was your half community property, and you want to make a claim against that. That would be a probate attorney that you would contact, and so I would buy an hour of time from a probate attorney, and say, “Hey, under 2556, I’m told that I have some rights here for omitted community property, and I need to make a claim against my ex-husband’s estate before the money is gone.”