June 12, 2014

California Courts Oversee Amount of Child Support

my-last-cash-5-1138574-m.jpgWhen parents divorce, they must address many serious and life-changing issues, including custody, visitation, and child support. In many cases, these issues will arise during family law proceedings involving parents who never married but had children together. Whether or not the couple was married, they are legally obligated to ensure that the best interests of their children are met, even after they split up. One way to do that is to provide child support, a court-ordered amount of money that one or both parents is required to pay for the support of the child. California law provides a set of guidelines for the court to consider when calculating that amount. To protect the financial interests of your family, you are encouraged to contact a local San Diego family law attorney with extensive experience handling such delicate matters.

The amount of child support ordered by a court can vary a great deal, depending on the circumstances and financial well-being of the parties. In a recent highly publicized case, a California Superior Court judge approved a child support agreement between Halle Berry and her ex-boyfriend Gabriel Aubrey in the amount of $16,000 a month. Ms. Berry will be required to pay Aubrey nearly $200,000 for the support of their one daughter until she graduates high school or turns 19 years old, whichever date comes first.

In this instance, it seems that the parties who had recently been arguing over certain custody matters have come to a mutually acceptable agreement for support. If they had not, the court would have reviewed the statewide guidelines for calculating the amount, including each parent's income or earning potential, the number of children they have together, the amount of time each parent spends with the children, their respective tax filing status, any support of children from other relationships, and health care and day care costs, among other factors.

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June 5, 2014

Court Upholds Divorce Judgment by Default, Despite Allegations of Fraud

calendar-840874-m.jpgCalifornia is a no-fault divorce state. This means that if one person wants to end the marriage, the court has the power to do so, without any "cause" and even if the other spouse does not want it to end. It is important to understand the laws affecting the dissolution of marriage in California. Once a party files a petition for divorce, the court has the authority to enter a default judgment of dissolution if the other party fails to respond to the petition. But failing to respond to a petition could result in a forfeiture of any rights under the proceedings. Since the manner in which a spouse responds to a divorce petition can affect his or her rights to property, custody, and support, people are encouraged to consult with an experienced San Diego family law attorney as soon as possible.

In a recent case, a California court entered a default judgment of dissolution back in 2007, at the husband's request. More than five years later, the wife filed a motion to set aside the default judgment on the basis of fraud. Under section 2122 of the California Family Code, a party may set aside a default judgment based on fraud, but that action must be brought within one year of the date that the moving party discovered the fraud or should have discovered the fraud.

In this case, the parties were married in 1997 and had one child the following year. In 2006, the husband filed a petition for dissolution of marriage. There seems to be no question as to whether the wife was aware of the proceedings, since she personally appeared in court on three separate occasions in the spring and summer of 2006. The wife, however, failed to respond to the divorce petition. At this point, the husband asked the clerk to enter the wife's default. On February 16, 2007, the court entered a default judgment of dissolution, which provided for joint legal custody, with primary physical custody to the mother. The facts reveal that neither the request for entry of default nor the notice of entry of judgment was served to the wife's proper address.

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May 29, 2014

Highest Court in California Rules Life Insurance Policy is Community Property

bank-loan-concept-2-1415802-m.jpgWhen people get divorced in California, the law mandates that their "community property" be divided equally between them. This means that any property accumulated during the marriage, with the exception of inheritances and gifts, is subject to even distribution. While this sounds like a simple premise, if the spouses have property and assets of significant value, the whole procedure can become complicated fairly quickly. To ensure that you are sufficiently aware of the marital assets to be divided between you and your spouse, it is important that you consult with an experienced San Diego family law attorney as soon as possible.

Properly preserving the right to marital property that is eligible for distribution has the potential to affect each spouse's future financial position. By most accounts, this is a critical phase in the proceedings. One challenging aspect is determining what is separate and community property, respectively. A recent court of appeals case involving Frankie Valli and his wife, Randy Valli, addressed the issue of whether a life insurance policy is deemed community property to be split during the dissolution of the marriage. The parties had been married for 20 years when they decided to separate in 2004. The year before the separation, the husband used community property funds from a joint back account to pay for a life insurance policy valued at $3.75 million. His wife was named the sole owner and beneficiary.

At trial, the court determined that the life insurance policy was community property because it was acquired with community funds during the marriage. In crafting its judgment, the court awarded the policy to the husband but required him to buy out his wife's interest, namely one-half of the policy's cash value at the time of trial. The court of appeals reversed, concluding that the insurance policy was the wife's separate property.

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May 22, 2014

California Family Code Does Not Preclude a Sperm Donor From Establishing "Presumed Father" Status

medical-doctor-1314902-m.jpgThe California Family Code governs many aspects of family court cases in the state. And many of these statutes apply to matters that affect children, including paternity and child custody issues. In drafting laws affecting children, the legislature has as its primary purpose the best interests of the child. While the premise is basic and simple to understand, sometimes the circumstances surrounding a particular case may complicate matters. Establishing paternity is important for many reasons, most notably for the general welfare of a child, for it is a vehicle through which a child may receive emotional and financial support. Parents who are confronting paternity and related child custody or support issues are encouraged to contact an experienced family law attorney who is fully familiar with the laws and procedures affecting San Diego families.

A recent California case illustrates the complicated nature of, and interplay between, two related paternity statutes. The case involves actor Jason Patric and his former girlfriend, Danielle. While the couple lived together for many years, they never got married. In December 2009, Danielle gave birth to a child that she conceived through in vitro fertilization ("IVF") with sperm that Jason provided to a licensed fertility clinic. There was no declaration of paternity, and Jason is not listed on the child's birth certificate. In June 2012, Jason filed a petition with the court to establish a parental relationship with the child. Danielle opposed the motion, arguing that Jason was a sperm donor within the meaning of the state statute and not the child's natural father as a matter of law.

At trial, Jason provided evidence of his relationship with the child until mid-2012 when Danielle ended her relationship with Jason. But the trial court granted Danielle's motion for nonsuit, finding that section 7613(b) precluded Jason from establishing paternity under section 7611(d). In so holding, the court concluded that under the statute, "There can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician."

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May 15, 2014

Spouses File for Divorce in Separate States, Which Court Has Jurisdiction?

usa-map-869935-m.jpgMaking the decision to divorce is no simple task. Very often the decision is made somewhat reluctantly, since couples typically must address many emotional and painful issues in order to reach that point. But once the choice is made, parties must realize that there are procedural steps to take in order to preserve and protect one's legal rights, whether it be for child support, spousal support, custody and visitation, or rights to certain marital property. The California family code governs family law matters in the San Diego area and throughout the state. If you are facing dissolution of marriage, you are encouraged to contact a family law attorney who has extensive knowledge of the local laws and procedures.

In a recent divorce case, the husband and wife were living in different states when they decided to end the marriage: California and Colorado. Both parties had significant ties to California before they were married. The husband founded a company in Mountain View in 1992 and later relocated another company he founded to Palo Alto. The wife went to Stanford University and later to the University of California at Berkeley for a law degree. She was admitted to practice law in California in 1987. The couple got married in 1999 in Carmel. But during their marriage, they lived with their three children primarily in Aspen, Colorado.

According to the facts of the case, between 2002 and 2011, the parties were registered to vote in Colorado, paid state income taxes only to Colorado, and had Colorado state driver's licenses. Despite this connection to Colorado, the parties also maintained ties to California. They own real estate in Carmel and two homes in Los Altos. The husband also maintains an airplane hangar and an apartment in Monterey. Additionally, the couple founded a company in Sunnyvale, California. Typically, the husband worked in California during the week and flew back to Aspen each weekend to be with his family.

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May 8, 2014

California Court May Modify a Child Support Order Issued in Another Jurisdiction

simple-earth-2-1358288-m.jpgDivorce can take a toll on many aspects of a family's life. There are decisions to make that will affect the parents and children - both emotionally and financially. The financial implications of divorce can be measured in different ways - from an award of child support and/or spousal support, to the division of marital property. No matter what the issue, it is imperative that you protect your rights every step throughout the sometimes-complicated procedure. One of the most effective ways to accomplish this is to contact a local San Diego family law attorney as early in the process as possible.

As most people know, child support is an amount of money that a court orders a parent or both parents to pay each month for the support of the child and his or her related living expenses. Child support is a very serious matter. In California, courts cannot enforce a child support obligation without an official order of support. Questions have arisen as to what power a court has to modify an order for child support that has been rendered in a different jurisdiction.

For example, a recent case involved a dispute over a California court's jurisdiction to modify a child support order that was rendered in Mexico. The father claimed that the court did not have subject matter jurisdiction under the Uniform Interstate Family Support Act (the "UIFSA"), because his "domicile and residence" is in Mexicali, Mexico. Here, the parties were married in Mexico in 1990 and in 2000, entered into an agreement for divorce in Mexico. The agreement required the husband to pay monthly child support in the amount of 1,000 pesos for each of the two children.

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April 24, 2014

Wife's Conduct During Divorce Proceedings Factors into Court's Division of Marital Assets

market-movements-3-1388613-m.jpgDivorce is often synonymous with acrimony. Whether you live in San Diego or New York City, divorcing spouses typically face many difficult and potentially divisive issues, such as spousal support, identification and division of marital property, child custody and support (if there are children from the marriage), and many other logistical, financial and emotional considerations. And while some cases are worse than others, in terms of the extent of the spouses' civility and courtesy toward one another, there are couples that, with the proper guidance, can dissolve their marriage in an efficient and civilized manner. Reaching out to an experienced family law attorney, who is fully familiar with the legal procedures in and around the San Diego area, will surely help the parties to approach the case with poise, dignity and a strong sense of what they can expect every step of the way.

A recent case making news headlines on the east coast is a prime example of the need to "keep your cool" during a divorce proceeding. A New York judge found that the wife's conduct in bad mouthing her husband on various websites and in a New York newspaper article, contributed to a decline in value of the husband's partnership (along with the economy). According to reports, the wife was the source of a newspaper article that reported that the husband bought a $215,000 diamond engagement ring for his "model fiancée" - but allegedly refused to spend $12,000 for his daughter's hearing aids.

The husband is a corporate partner at a law firm. He claimed his earning potential is largely derived from his ability to bring in business. At trial, the husband argued that his wife's conduct from the beginning of the divorce has interfered with his ability to retain clients, causing the value of his partnership interest to decline. The court found that the evidence established that the wife's Internet postings injured the husband's professional standing and ability to keep his clients, citing "incessant postings and discussions about her husband."

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April 17, 2014

Parents May Restrict Court's Review of Adult Child Support Order

market-movements-2-1388612-m.jpgUnder California law, support orders may be modified or terminated at any time, as the court deems necessary. The law further defines "support order" as including a child, family or spousal support order. These provisions apply to cases filed in family courts in San Diego and throughout the state. And court decisions interpreting the statutory language, in relation to the underlying facts and circumstances of a case, can impact the way future family court cases are decided. Families facing child support disputes are encouraged to contact an experienced family law attorney who is fully knowledgeable of the local and recent court decisions affecting a party's right to child support.

It is important to understand the complexity of child support laws and how they apply to adult versus minor children. While California law specifies that a parent's child support obligation typically extends until a child reaches the age of 19 or completes the 12th grade, parents may agree to provide additional support. The question then arises, does a court have the authority to modify such an agreed upon extension of support for an adult child?

In a case of first impression in California, the court of appeals was asked to decide whether, under the state family code, parents may contractually limit the court's jurisdiction to modify an adult child support order that was made under the parents' marital settlement agreement. Here, the court looked at the interplay of two applicable family code statutes: section 3651 and section 3587. Section 3651 provides a court the authority to modify or terminate a support order - subject to section 3587, which gives a court the authority to approve a stipulated agreement by the parents to pay for the support of an adult child.

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April 10, 2014

In Custody Dispute, Court Temporarily Prevents Child from Traveling Outside the Country

three-globes-1372599-m (2).jpgWhen a court issues a child custody order, there's a good chance that it will be modified before the children reach adulthood. Parents may consider renegotiating the arrangement every couple of years or so. Changes may occur in the family's life that will precipitate the need to modify the custody arrangement, such as a new job or home or changes in the children's interests and activities. California law requires a judge to approve any alterations to a final custody order. If you have questions about modifying a court ordered custody arrangement, it is critical that you contact a San Diego family law attorney who is experienced in handling such matters in the local courts.

In a recent case, a California court modified a custody order, and in doing so, refused to allow a child to travel with the father out of the country. In this complicated matter, the parents were married in 2005, their only son was born in 2006, and they divorced in 2008. At that time, the parents were awarded joint legal custody of the child. The mother alleged that in 2010, the father halted contact with their son when he moved out of the country to Australia. It seems that the father and son had little communication with one another for two years. In December 2012, the father told the mother that he was coming back to San Diego and hoped to resume his 40 percent share of physical custody of the child.

Believing that this would be detrimental to the child, the mother filed a request for order (or "RFO"), asking for sole legal and sole physical custody of their son. Despite the fact that Family Court Services did not forbid the boy from visiting his father in Australia, the trial court issued a modified custody order, removing the possibility of the child going to Australia until at least June 2014 when a hearing could be held to reconsider the issue. The court granted the father two visits in San Diego for two weeks each, in addition to other visitation privileges. The father appealed the modification order contesting his inability to take the child out of the country, as well as other issues not discussed here.

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April 3, 2014

California Court Denies Wife's Request for Attorney's Fees in Divorce Proceedings

law-education-series-3-68918-m.jpgThe overwhelming sentiment is that parties to divorce proceedings should be represented by counsel, especially when there are children involved. There are many intricate legal details and requirements that must be followed throughout the entire process. For example, the California Family Code governs many issues that arise during the dissolution of a marriage. And the law certainly serves to protect the interests of parties to a divorce proceeding. If you are considering divorce, it is important to consult with an experienced San Diego family law attorney as early in the process as possible.

Because legal representation is particularly helpful to "level the playing field" in a divorce proceeding, state law provides that courts must make sure that each party has access to an attorney. Specifically, Section 2030 of the California Family Code provides in relevant part that in a dissolution of marriage proceeding, as well as any proceeding following the entry of a related judgment, the court shall ensure that both parties have access to an attorney. According to the statute, this includes access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party to pay to the other party, an amount that is reasonably necessary for attorney's fees as well as other costs associated with maintaining or defending the proceeding.

In a recent case, the wife sought "need-based" attorney's fees (among other relief) in a divorce trial that lasted four days. The trial court refused to award the relief she requested, finding that the evidence did not support such a ruling. The court found that there had not been a disparity in access to funds to retain counsel and that neither party was in a position to pay the attorney's fees and costs of the other party. The wife appealed this ruling, arguing, 1) that her husband's testimony lacked credibility and, 2) that he made frivolous motions and forced her to compel his mandatory disclosures.

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March 27, 2014

California Court of Appeals Affirms Denial of Spousal Support

colorful-symbols-2-949759-m.jpgSpouses who seek to divorce are often faced with many emotional and practical decisions. Breaking up a family can be a very trying time for everyone involved. But there are issues that must be addressed, including financial matters that will likely affect the family's lifestyle going forward. For example, in California, courts have the discretion whether to order one party to pay for the support of the other, i.e., spousal support, for a certain period of time after the divorce. But keep in mind that spousal support is not mandatory. If you are considering a divorce, it is critical that you contact an experienced family law attorney from the San Diego area who can help to protect your financial interests in the outcome of the proceedings.

In a recent case, the court of appeals agreed with the trial court in its refusal to award spousal support to the wife. Here, the parties were married in 2005, had one child in 2007, and subsequently separated in 2011. The husband graduated from high school and works at a country club as a "starter." His earnings total between $3,000 and $3,200 per month, plus an annual bonus during the holidays. The wife has an Associate's degree in accounting. While she worked as an accountant at the same country club, she had to leave her position due to a significant illness that left her hospitalized and in a coma for a time.

During her hospitalization and then after she was released, the wife took high doses of narcotic painkillers. Just before the couple separated, the wife attacked the husband in a domestic violence incident. The court issued a two-year restraining order against the wife. At the divorce trial, the court awarded the husband sole physical custody of the child and denied the wife's request for spousal support. She appealed.

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March 20, 2014

California Court Reviews Standard for Renewing a Domestic Violence Prevention Restraining Order

law-badge-1164850-m.jpgDomestic violence is a very serious matter. Whether you have been the victim of domestic violence or accused of the crime, there are many important issues to address. The first, as far as a victim is concerned, is one's future safety and protection from harm. There are various remedies available under California law for victims and those who have been accused. In order to determine your rights and the laws applicable to your case, it is critical that you contact an experienced family law attorney who is fully familiar with the legal procedures in and around the San Diego area.

In a recent court of appeals case, the ex-wife sought a renewal of a domestic violence restraining order that had expired. The trial court refused to grant the renewal, citing applicable law - and concluding that the facts of the case did not support such renewal. The court of appeals reversed, pointing to the lower court's erroneous legal conclusions. Here, the couple divorced in May 2010 after seven years of marriage. During the divorce proceedings, the wife filed a request for a domestic violence prevention restraining order against her soon-to-be ex-husband. In support of the request, she described a history of verbal and physical abuse by her husband. She alleged that on various occasions, he slapped her, shoved her to the ground and attempted to choke her. In 2009, the court issued the protection order for a term of three years.

In July 2012, the ex-wife sought to renew the order, claiming that she still feared her ex-husband due to the abuse during the marriage. She further described various instances where he violated the original restraining order. The trial court denied the request, concluding that it did not meet the legal standard of "a reasonable apprehension of future physical abuse." The court pointed out that not only did the abuse occur a long time ago, but also it was of a nature that would not - alone - support renewal of the order. Significantly, the court concluded that because nothing happened in three years, there was no "reasonable apprehension." The ex-wife appealed.

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March 13, 2014

California Man Who Hid Assets in Divorce Gets 17-Year Sentence

handcuff-449966-m.jpgDivorce has the potential to bring out the worst in people. There are many significant issues to resolve before the parties can go their separate ways, such as child custody and support, division of property and spousal support. When the soon-to-be ex-spouses cannot see eye to eye on these all-important matters, disputes can arise and the negotiations can become more and more contentious. In an effort to minimize the animosity between the spouses and to move the process along efficiently and smoothly, it is important to consult with an experienced family law attorney from the San Diego area.

One of the most important issues to resolve is the division of marital property. In order to do that, parties must be able to find and identify marital property, subject to division. Fortunately, state law provides some guidance in this area. California is a "community property" state, which means that a marriage renders two people -- one legal "community." In effect, property that the couple acquires during marriage is "community property." In some cases, deceptive spouses attempt to conceal or hide joint assets in an effort to avoid division of the assets in divorce. Another tactic is to file a fraudulent bankruptcy petition.

In a recent case reported in the U-T San Diego, a man was sentenced to 17 years for his efforts to conceal millions of dollars in assets in divorce and bankruptcy. According to the news reports, the man told his wife that he would file for bankruptcy so that she would get "nothing, including child support." The couple split up in 1999. Between 1999 and 2005, the man reportedly concealed millions of dollars in assets by placing them in other people's names. In 2005, he filed for bankruptcy protection. In 2008, a California court of appeal ruled on the divorce case and said in the ruling that it was the husband's "unstated but apparent view that if he can conceal his finances long enough he will not have to support his children."

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March 6, 2014

California Courts and Legislature Address Abduction of Child by Custodial Parent or Guardian

911-776459-m.jpgIn most child custody disputes, parents are trying to determine the most suitable parenting plan for their family. Issues such as physical and legal custody are the most common matters to be resolved. In some cases, one parent may be dissatisfied with the ultimate arrangement approved by the court. And unfortunately, parents who are wholly unhappy with their share of parenting responsibilities have on occasion resorted to drastic measures, such as abducting their children in contravention of the custody order. In order to prepare an arrangement that is in the best interests of your children, it is critical that you contact a local San Diego family law attorney as early in the proceedings as possible.

The child abduction statistics in this country are staggering. According to the US Department of Justice, 800,000 children are reported missing every year in the United States, while an estimated 200,000 are taken or abducted by a family member. One of the most helpful tools in finding abducted children within a quick time frame has been the "Amber Alert" system. Despite the effectiveness of the system, there was a question as to its applicability to abduction by a child's parent or guardian. To address this ambiguity, the California legislature drafted a bill to amend the state Amber Alert law. The law now authorizes activation of the Emergency Alert System even if the abductor is the child's custodial parent or guardian where the child is in imminent danger of serious bodily injury or death.

In a recent court of appeals case, a mother who took her children in contravention of the current custody order was found guilty of two counts of child abduction in violation of the California state penal code. Here, the parties had twins in 1999 and divorced in 2007. At the time of the divorce, the original settlement agreement afforded the parents a right of first option to care for the children while the other parent was away dealing with an emergency. Many years and multiple custody orders later, the court awarded the dad primary physical custody of the twins in 2008.

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February 27, 2014

Quasi-Judicial Immunity Protects Actions by Family Court Child Custody Evaluator

u-s--supreme-court-2-1038828-m.jpgChild custody cases usually present many challenging issues that have the potential to impact the entire family for years to come. Ideally, parents will agree to a parenting plan that satisfies the wishes of both parties. But many cases involve parents with vastly different outlooks on what is in the best interests of their children going forward after a divorce. When there is no agreement between the spouses, a judge in California may decide to appoint a child custody evaluator to conduct a custody evaluation and recommend a parenting plan. And while a parent is entitled to ask for an evaluation, the request may not necessarily be granted. It is also possible that parents will be expected to pay for an evaluation. Parties facing child custody disputes are encouraged to contact an experienced San Diego family law attorney who can help to navigate the process with competence and knowledge of the local laws and procedures.

According to the California court's website, a child custody evaluation involves an investigation and analysis by an expert of the health, safety, welfare, and best interests of children. In a recent court case, the parents were involved in a lengthy and bitter child custody proceeding concerning their two young children. Here, the court ordered the parties to retain the services of a child custody evaluator who would evaluate the circumstances and provide a custody recommendation to the court. Apparently, during the proceedings, the court granted the evaluator the authority to issue interim custody orders pending the court's ultimate review.

The mother brought this action against the custody evaluator alleging negligence, breach of contract and intentional infliction of emotional distress. Among other things, she claimed that the evaluator issued an interim order that restricted access to her children. The evaluator responded by asserting that the acts complained of were quasi-judicial in nature and therefore protected by the common law privilege. The mother argued that the evaluator had no jurisdiction to render an interim custody order and thus, the act was not entitled to immunity.

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