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Finding Hidden Retirement Plans

Finding Hidden Retirement Plans

Almost every divorce, whether the parties are low-net-worth or high-net-worth (HNW) individuals, involves dividing retirement assets.  Failing to divide these retirement assets properly can result in significant, unanticipated, irreversible, negative downstream financial impacts.  For this reason, most family law attorneys hire outside “QDRO counsel” to draft qualified domestic relations orders for their clients. This is a very specialized area of law that requires technical precision and more than a passing knowledge of this area of law. In addition, hiring  and attorney who specializes in crafting QDRO’s is considerably less expensive than attempting to draft these orders in-house.

Retirement assets are classified as either qualified or non-qualified. Retirement plans that comply with the requirements and parameters of the federal Employee Retirement Income Security Act (ERISA) are considered qualified plans.  Retirement plans that do not comport with ERISA are non-qualified plans. Some examples of non-qualified plans are individual retirement accounts (IRAs), stock option plans, deferred compensation plans, supplemental pension plans, and long-term incentive plans. ERISA-qualified plans include such plans as defined benefit plans (i.e., 401(k) plans), defined contribution plans, and many pension plans. The vast majority of all retirement plans are qualified plans.

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Red Brick WallAs an attorney who litigates Borderline divorces in Los Angeles and who consults nationally and internationally with spouses of Borderlines, attorneys and child custody evaluators, watching Borderline Personality Disorder (“BPD”) slowly emerge from the shadows  into public awareness is extremely exciting.  In 2011, Marshall Brandon, who played NFL football with the Denver Broncos and Miami Dolphins before being traded to the Chicago Bears, publicly announced he had been diagnosed with BPD.  An article published online by ESPN in February 2011, covered how Marshall Brandon stepped up to be a spokesperson for BPD diagnosis and treatment. He founded Project Borderline and the Brandon Marshall Foundation.  Other BPD suffers have come forward as well like Susanna Kaysen (“Girl Interrupted”).

Over the last 10 years, the internet has brought BPD into the open and exposed this previously unknown and misunderstood personality disorder.  Dozens, if not hundreds, of websites now exist that address BPD. Treatment centers, alternative modalities of treatment, support groups, blogs and other resources are available to those who suffer from BPD and to those who are in interpersonal relationships with a BPD.

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A recent article in the Los Angeles Times discusses the unexpected to-do that surrounds determination of pet custody. An increasing amount of money, time and resources is being spent to decide the fate of household pets, and the process can be as complicated as a child custody battle.

file00073561044.jpgComplications arise because the animal has no voice of its own, and can’t say who it’s rightful owner is or with which party it would prefer to reside. The average pet owner rarely thinks about routinely updating documentation to prove their relationship with their pet, so pet custody battles tend to be based on one party’s word against the other.

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THIS%20KID.jpgVirtual visitation is the latest custody-related family law fad. California family law courts are issuing virtual visitation orders in lieu of face-to-face visitations where face-to-face visitations are feasible, albeit inconvenient. This is not good. Virtual visitation orders should only be issued where in-person child visitations are not possible.

Admittedly, virtual visitation helps people like deployed military personnel who have no control over their deployments and work locations keep in touch with their families back home. In some cases it is the only medium through which a very young child is able to know the removed parent at all. In such cases, virtual visitation orders allow non-custodial parents and children to have a “virtual relationship”, which is better than none at all.

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Proposed federal legislation would require state family law judges, including California’s, to automatically re-establish, upon a servicemember’s return from deployment, the custody and visitation schedule in effect at the time the servicemember was deployed. Under current law, many servicemembers lose custody and visitation time when deployed because they cannot be present to defend against requests modifying child custody and visitation orders.

According to this March 19, 2012 “Washington Post” article, if, during specific qualifying types of deployment, custody is temporarily granted to another person, upon the servicemember’s return, the court would be required to re-establish the custody arrangement as it was prior to deployment. Essentially, the court could not consider the servicemember’s deployment in determining what custody arrangement is in the best interests of the child.

Qualifying deployments would include such deployments as those that prohibit the accompaniment of family members (e.g., combat assignments)l Also, deployments must be between 60 days and 180 months in duration.

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A five year-old kindergartener’s hands and feet were hand-cuffed with zip ties by a Stockton, California police officer who then arrested the five year-old ADHD sufferer for battery on an officer for kicking the officer in the knee. Lieutenant Frank Gordo was apparently victimized by five year-old Michael Davis. As an American, it is embarrassing to read articles like this November 2011 KCRA news article http://www.kcra.com/r/29847063/detail.html. As is unfortunately typical of articles like this, this article only hints at the real story and raises more questions than it answers.

Why were the five year-old’s parents not told for two weeks that their son was handcuffed with zip ties?

Why weren’t the parents called as soon as the decision to transport this child to a psychiatric hospital was made? In 2012, do American parents retain any rights to act on behalf of their children or can the State take a minor child into custody at will in much the same way the State can take possession of your dog or cat?

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1381644_kid_picking_raspberries_from_the_bush.jpgState-sponsored child abuse is epidemic in Los Angeles and throughout the United States as evidenced by law enforcement protocols, family and juvenile court proceedings, adoptions, foster care programs and, increasingly, schools. For example, in November 2011, Hawaii’s Child Protective Services, in cooperation with the Honolulu Police Department, traumatized a three-year old girl by taking her into custody to punish her momentarily distracted parents who forgot to pay $5.00 for two sandwiches at a Safeway. Read this Fox New story and ask yourself these questions:

Isn’t abuse, regardless of who commits it, still abuse? Or do you believe that a law enforcement uniform somehow excuses the wearer from responsible, socially accepted norms of behavior?

Who at Safeway was fired?

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The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs many international child custody disputes involving California (or any state within the United States) and a foreign country. In addition, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) as made effective in the United States by the International Child Abduction Prevention Act (“ICARA”), which is a federal law, governs international custody disputes between countries that have both signed the Hague Convention treaty. Whether the foreign country has signed the Hague Convention or not determines how the California court can proceed as a matter of law and this determination in turn

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Attorneys who either want to churn fees or who are afraid their client will not do well on a psychological/custody evaluation will oftentimes resort to litigating a psychological/custody evaluation during the evaluation. Their purpose in doing so is to unfairly influence the outcome of the evaluation. Unfortunately, they oftentimes succeed and the family is forced to endure a custody arrangement that is not based on the best interests of the children.

In California, the better practice is to wait until the psychological/custody evaluation is competed and distributed to the respective attorneys and the court and then, if you believe the evaluator’s methodology is problematic, challenge it by either impeaching the evaluator or by hiring another evaluator to perform a “unilateral” evaluation and to critique the first evaluator’s work. (Some states like California allow parties obtain “unilateral” evaluations without a court order; other states require permission from the court.) A “unilateral” evaluator is an evaluator hired by

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