California Marital Settlements: January 1999 Summary

Legal Developments

Nelson v. Commissioner - Tax Treatment of Equalizing Payment

If an equalizing payment will be made in installments, care should be taken to ensure the non-taxability of the payments to the receiving spouse. Nelson v. Commissioner (1998) TCM 1998-268, T.C.M. (RIA) 98,268.

IRMO Shelstead - Alternate Payee Under QDRO Cannot Designate Successor in Interest

On remand from the California Supreme Court, the Court of Appeal decided in In re Marriage of Shelstead (1998) 66 Cal.App.4th 893, 78 Cal.Rptr.2d 365 that an alternate payee under a QDRO cannot name a successor in interest for benefits payable under an ERISA plan.

IRMO Babauta - Division of Military Voluntary Separation Benefits

A military service member's voluntary separation benefits may be characterized as community property and divided between the parties. In re Marriage of Babauta (1998) 66 Cal.App.4th 784, 78 Cal.Rptr.2d 281.

IRMO Biallas, IRMO Condon, IRMO Edlund and Hales - New Move-Away Cases

Updated custody commentary discusses three new move-away cases:

• In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 76 Cal.Rptr.2d 717 ("primary physical custody" label given to custody sharing arrangement did not control; mother had de facto sole custody and could move);
• In re Marriage of Condon (1998) 62 Cal.App.4th 533, 73 Cal.Rptr.2d 33 (custodial parent could relocate to Australia with children upon conceding to continuing jurisdiction of California court);
• In re Marriage of Edlund and Hales (1998) 66 Cal.App.4th 1454, 78 Cal.Rptr.2d 671 (where primary parent's motives for moving were in good faith and not to frustrate visitation, parent was permitted to move despite contrary provision in custody agreement).

Dale v. Dale - Tort Action Permitted Against Ex-Spouse for Concealing Community Assets

In Dale v. Dale (1998) 66 Cal.App.4th 1172, 78 Cal.Rptr.2d 513, the Court of Appeal allowed a tort action by a former wife alleging that her former husband tortiously concealed community property, thereby preventing her fully presenting her case in the dissolution action.

1998 Federal Tax Legislation - Innocent Spouse Rules Liberalized

New Internal Revenue Code section 6015, enacted as part of the Internal Revenue Service Restructuring and Reform Act of 1998 (P.L. 105-206), has eased the requirements for innocent spouse relief and made it more available.