vacationpay

[socalguy27]

mediationproblems

What is the name of your state? CA

Hello,

I need your suggestions and advice. We are going through a divorce mediation right now and the spousal support has been calculated based on my total salary(=salary+vacation pay for 2 weeks). I have not had much chance to take a vacation during the last few years and have about four weeks of vacation saved up, which I plan to take sometime - have no intention of selling it back for the money. Now my wife claims this is community property and wants half the money for the vacation I have saved up. Can this be right?

My points are:

1. Since the spousal support is based on my total salary(=salary+vacation pay for 2 weeks), paying her half the vacation money is like paying her twice for the same thing.
2. I do not receive any money when I take the vacation, so why should I have to pay her anything?
3. Shouldn't the vacation I saved up be considered personal property anyway?

Can anyone please let me know how to deal with this? Thanks so much.

socalguy27

 

[djohnson]

I personally think she is pushing her luck asking for that. Sometimes lawyers will ask for everything hoping to settle on something else. It gives them room to dicker when you fight. Your should be doing the same, offering nothing, and willing to settle on something.

 

[nextwife]

Umm, if you are like most people, your salary is not salary PLUS vacation, but already INCLUDES vacation. In other words you make X dollars per year, and are entitled to use a certain amount of that as vacation, or sometimes to carry it over. It is NOT accrued as a cash plan over and above salary. There is nothing additional for her to collect. The salary you have recieved so far is community property. Your sometime-in-the future pay is NOT. Your vacation is merely future pay that will happen at a time you are not in the office (or working).

AS regards future vacation time used, I don't see where there IS any community property to split!

 

[socalguy27]

mediationproblems

Location: California

Thanks for the valuable advice "djohnson" and "nextwife". shall keep your tips in mind and use it in the next mediation meeting we have.

we have had half a dozen mediation meetings now, over ten hours total. after all this, we are back to square-one. we discuss/negotiate about a few things each meeting and then she comes back the following meeting and says she does not agree to anything, and starts re-negotiating. the points she's bringing up are getting more un-reasonable by the day. so far, i've had to compromise on every topic we talk about. i have a bunch of questions, can i please get some advice:

1. is that how mediation usually proceeds, or is this a really hopeless case? should i still stick to this or just simply go for litigation? any advice on how to turn the table?
2. if i change the mediator, do you think the situation might improve? i think the problem is that the mediator is equally frustrated - the other day he mentioned this is one of the worst cases of mediation he's seen in 30 years.
3. if we get a different mediator, is the date of separation going to remain the same, or that changes too? i know she really wants that, as that means she's going to get more money
4. she's been calling my relatives and saying nasty things about me. is there any legal action i can take against that?
5. she keeps asking for more and more documents from me, and i wanted to get done with the divorce fast, so i have not asked anything from her. is that a wrong move in mediation?

thanks a lot for reading. look forward to hearing your advice/suggestions.

 

[minerzlegal]

Socalguy. I have gone through 5 divorces, some went very smooth and were over in no time. Others dragged on and on. My advice is get tough, not mouthy. Stand your ground and settle for what is right not what she wants, just to get it over. Remember what you settle for now usually comes back at a later date, and you wish you had not been so eager to get it over. My longest divorce took over three years. Where is your attorney in all of this? Good luck.

 

[djohnson]

The key to mediation is agreement, so if she wants 1 and you want 10 you keep giving until you reach a 5. It's not always equal or fair but you have to give to get. That is why they are asking for every little thing. It makes them look good when they give it up and it gives them play room. If you aren't willing to give or compromise you might as well go for litigation and let a judge decide.

 

[socalguy27]

CA

I have a question: we are going through a mediation and it just seems never ending (posted under mediationproblems). if there are only a few issues that we do not agree about, can we take just those issues to court? is that a good idea, or should i just let it go?
one of the issues, for instance is vacationpay. i know now, that she's being totally unreasonable about this. thanks for reading.

 

[nextwife]

Vacation pay in many places is NOT an accrued cash benefit. It is simply pay that occurs at a time one is NOT in the office - it is NOT "additional" salary. If your salary is counted in full and she is already getting SS - vacation pay is already in there. Do NOT compromise on that unless she gives big time in your favor on something comparable.

Does SHE get vacation time? What does she THINK your share of that should be?

Do NOT agree to "Permanent alimony", she should only get rehabilitative alimony unless she is too frail and elderly to enter the workforce.

 

[socalguy27]

she has not given bigtime or smalltime on anything so far, and the last six meetings has been about all that she wants and she can get from me.
she has recently used up all her vacation, and besides, by salary is more than three times hers, so i simply am in a bad position.

the alimony part, she's getting that for the time half the length of the marriage, so i should have no complaints.

any suggestions?


Vacation pay in many places is NOT an accrued cash benefit. It is simply pay that occurs at a time one is NOT in the office - it is NOT "additional" salary. If your salary is counted in full and she is already getting SS - vacation pay is already in there. Do NOT compromise on that unless she gives big time in your favor on something comparable.

Does SHE get vacation time? What does she THINK your share of that should be?

Do NOT agree to "Permanent alimony", she should only get rehabilitative alimony unless she is too frail and elderly to enter the workforce

 

[socalguy27]

can anyone please advice me on the following: what part of the California Family Code gives a clearcut answer on whether "vacationpay" is community property or not? recently found the link to the website:

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=20

if you could quote the division=>part=>chapter=>section or article that backs up the claim that vacationpay is not community property, that would be very helpful.

my knowledge on this is very poor and i know nothing about law, but just by using search words "vacation pay" i found the following in section 80 of the following link:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=18017123138+0+0+0&WAISaction=retrieve

does this mean vacationpay is community property?
if i have to take a firm ground at the next meeting on this issue, i just want to make sure i have enough to solidly back me up.

thank you for reading.

 

[LdiJ]

can anyone please advice me on the following: what part of the California Family Code gives a clearcut answer on whether "vacationpay" is community property or not? recently found the link to the website:

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=20

if you could quote the division=>part=>chapter=>section or article that backs up the claim that vacationpay is not community property, that would be very helpful.

my knowledge on this is very poor and i know nothing about law, but just by using search words "vacation pay" i found the following in section 80 of the following link:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=18017123138+0+0+0&WAISaction=retrieve

does this mean vacationpay is community property?
if i have to take a firm ground at the next meeting on this issue, i just want to make sure i have enough to solidly back me up.

thank you for reading.

You are not going to find a law out there that says that vacation pay is not community property. Laws don't break things out into such fine detail. The question is whether or not vacation pay is a tangible asset.

You have two choices with the vacation pay.

You can cash it in. This produces extra cash, over and above your salary for the year you cash it in. If that has been your pattern in the past (cashing in your vacation time) then her argument could have validity. It could be considered a "marital asset"....because it could be argued to be a tangible asset.

Or, you can use the vacation time (or save it to use later) in which case it produces no extra cash....you just take time off work. In that scenario her arguement has no validity. It isn't a tangible asset because it doesn't change the bottom line.

If it were me, I would be arguing that I have no intention of cashing in my vacation pay for extra cash....and every intention of taking normal vacations like a normal human being.....and therefore refuse to include the vacation pay in any alimony calculations or division of assets.

Or, in the alternative...just to make her happy, you could include a proviso that says that if you choose to cash in any vacation pay during the period in which alimony is paid, that she would be entitled to "X" % of the pay. Since you aren't intending to cash any of it in....the proviso would be irrelevant, but it would shut her up.

 

[socalguy27]

That is an awesome argument - thank you so much for your feedback. If this does not work, probably nothing else will.

I have another question, if someone can please help me out:

If I sent money to my parents before (on several occasions, to help them when they were sick, and my dad's retired, so limited financial means - therefore, a moral obligation for me) without her knowledge (because she's going to create a living hell if i tell her, i have verified that truth before), do i have to return half the money to her now? i know one of the first questions that may be raised is whether this was an attempt to move money before the divorce, and even my wife will agree that that was not the case. my only intention was to help them out when they needed me.

Can anyone please help me out on this issue - this has been a major sticking point. thanks so much.

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You are not going to find a law out there that says that vacation pay is not community property. Laws don't break things out into such fine detail. The question is whether or not vacation pay is a tangible asset.

You have two choices with the vacation pay.

You can cash it in. This produces extra cash, over and above your salary for the year you cash it in. If that has been your pattern in the past (cashing in your vacation time) then her argument could have validity. It could be considered a "marital asset"....because it could be argued to be a tangible asset.

Or, you can use the vacation time (or save it to use later) in which case it produces no extra cash....you just take time off work. In that scenario her arguement has no validity. It isn't a tangible asset because it doesn't change the bottom line.

If it were me, I would be arguing that I have no intention of cashing in my vacation pay for extra cash....and every intention of taking normal vacations like a normal human being.....and therefore refuse to include the vacation pay in any alimony calculations or division of assets.

Or, in the alternative...just to make her happy, you could include a proviso that says that if you choose to cash in any vacation pay during the period in which alimony is paid, that she would be entitled to "X" % of the pay. Since you aren't intending to cash any of it in....the proviso would be irrelevant, but it would shut her up.

 

[djohnson]

Did you just start sending it right before the divorce? Was it that large? Moral obligation isn't the best defense. However if it was given in assistance and looks that way then I don't see it being a problem.

 

[socalguy27]

No, it was not right before the divorce. this was over a period of several years, and every time i sent money to them there WAS a financial need, and i am the only person that they can count on for help.

the total amount sent to my parents is about 6% of my current salary.

she is taking me to the cleaners - how should i approach this to defend myself?

thanks so much.
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Did you just start sending it right before the divorce? Was it that large? Moral obligation isn't the best defense. However if it was given in assistance and looks that way then I don't see it being a problem.

 

[djohnson]

Has she brought it up? If not, I would just not mention it. Bringing it up would kind of silly on her part, does she want to go back and split all the presents to her family members also?