San Diego Divorce Attorney Blog

It is no secret that Demi Moore and Ashton Kutcher separated more than a year ago. The news spread through the tabloids in no time. But it took until this past December for one of the parties to file for divorce. According to a Huffington Post article, Kutcher filed first and Moore just recently responded by filing her own papers. The intriguing, and perhaps surprising part of this story is that Demi Moore is seeking spousal support from Kutcher. When a couple decides to end their marriage, often one of the parties is entitled to spousal support. If you or someone you know is contemplating divorce, it is imperative that you seek the advice of an experienced San Diego family law attorney, as early in the proceedings as possible, to identify and help protect your rights.

The article reports that Moore, who is 50-years-old, is asking Kutcher for spousal support and, to pay her attorney's fees, despite that she is worth (financially) more than he is. Some news sources have speculated that Moore was hurt by an affair Kutcher was thought to be having with a 23-year-old woman right before their separation. Reports also suggest that Moore is upset about Kutcher's publicly known relationship with Mila Kunis, an actress who starred in "That 70's Show" years ago, along with Kutcher.

From a financial standpoint, the request for spousal support seems to be stemming from bad feelings rather than a need to get by. According to the article, when Moore divorced Bruce Willis, she received $90 million. Currently, she is reported to be worth $150 million, compared to Kutcher's reported worth of $140 million. The decision on the amount, if any, of spousal support Demi Moore is entitled to will be determined by the court.

Under California law, when parties are divorcing, the court may order one spouse to pay the other a specified amount of money for support each month. A judge will look at what each spouse is able to earn to keep their standard of living as close to what they had during the marriage. In order to do this, the court will consider a variety of factors: (1) any marketable skills of the spouse receiving the support; (2) the current job market for those skills; (3) the expense and time it will take for the spouse who receives the support to obtain the training or education to get a job or to develop marketable skills or; (4) the extent that the earning capacity of the spouse who receives the support was adversely affected by unemployment during the marriage due to domestic responsibilities.

When one considers the above factors, it will be interesting to see what a court will order in terms of spousal support for Demi Moore. She seems to have earning potential and to be worth a great deal of money. For divorcing spouses who are not famous actors, the situation can be quite different. In order to ensure that you are treated fairly when it comes to spousal support, it is important to have an attorney who you can trust to protect your rights.

Continue reading "Demi Moore is Seeking Spousal Support in Divorce From Ashton Kutcher" »

A husband appealed pendente lite orders terminating spousal support and declining to modify child support in a divorce matter. In re Marriage of Freitas, No. D060281, slip op. (Cal. App. 4th, Oct. 3, 2012). The trial court entered orders awarding child support to the wife and spousal support to the husband. It later declined to modify the child support order, holding that a recent precedent decision prohibited it from doing so, but it terminated the wife's child support obligation, citing the husband's prior conviction for domestic violence. On appeal, the husband argued that both decisions constituted error. The appellate court affirmed the spousal support order and remanded the child support order.

Christine and Kevin Freitas separated in March 2010 after more than eighteen years of marriage. The couple have two children, who were thirteen and nine at the time of the separation. The wife filed for divorce in April 2010. The husband filed an order to show cause (OSC) that August requesting spousal support and child support. The wife opposed a spousal support order, informing the court that the husband had an October 2006 conviction for battery against her, and that in July 2010, the court entered a domestic violence restraining order against the husband. After a hearing on the OSC in October 2010, the court awarded the husband $800 per month in spousal support while the divorce was pending, and awarded the wife $7 per month in child support. The court reserved jurisdiction to modify the support awards for September and October, giving the husband until January 4, 2011 to present additional evidence of her income.

Continue reading "Modification of Spousal and Child Support Orders During Pending Divorce Litigation Reviewed by California Appellate Court" »

In affirming a trial court's child support order, an appellate judge quoted from Aesop's Fables, paraphrased as "be careful what you wish for." The case, In re Marriage of Barth, involved a divorce with petitions filed in two states, Ohio and California, a trip to the Ohio Supreme Court, and a final order in California that was far less favorable to the appellant husband. Ultimately, questions of credibility regarding the husband's financial representations persuaded the appellate court to affirm the large child support order.

The parties, Jeffrey and Andrea Barth, were married in 1989. They had two children, and they lived in Ohio until 2004, when the husband took an auditing job in California and moved to Orange County. The wife and children stayed behind in Ohio for about five months, during which time she quit her job and sold the family home. Several weeks after they joined the husband in California, he confessed to extramarital affairs. The wife and children returned to Ohio within days. She filed a divorce petition in Ohio on August 24, 2004, and he filed one in California the following day.

The Ohio divorce case went through litigation for nearly three years. The husband denied that the Ohio courts had subject matter jurisdiction, as the wife no longer had the required period of residency in the state at the time she filed. The Ohio court eventually entered an order setting current and retroactive child support. The husband appealed all the way to the Ohio Supreme Court, which ruled in March 2007 that the wife's brief stay in California ended her Ohio residency. It vacated all prior orders and dismissed the case.

Continue reading "Interstate Divorce Case Lands in California, Results in Large Child Support Order" »

If a man acknowledges paternity of a child based on the mother's assurance that no one else could be the father, then discovers, after a divorce and order for child support, that he is not the child's biological father, is he entitled to damages? The Supreme Court of Tennessee, in Hodge v. Craig, addressed the question of whether the person acknowledged as the father could pursue a claim for fraud or intentional or negligent misrepresentation against the mother. The trial court awarded the man over $100,000 in damages for child support and other payments made pursuant to the divorce decree. An appellate court reversed the order, but the state Supreme Court reinstated the judgment with a modified damage amount.

Chadwick Craig and Tina Marie Hodge met in high school, when they were both sixteen years old and began dating. Hodge reportedly had a daughter who was almost one year old at the time. They briefly separated in October 1991, and Hodge had sexual relations with another person. When she got back together with Craig, she never told him about this encounter. She learned she was pregnant the following month and told Craig that he was the father. The two were married in December 1991. Hodge gave birth to a son in June 1992. Craig also adopted Hodge's older child. He had a vasectomy in 1999 when he and Hodge decided they did not want more children.

After nine years of marriage, Craig and Hodge separated in October 2000, and their divorce became final in February 2001. Craig was ordered to provide health insurance for both children and pay child support. Hodge remarried in 2002. Craig moved to Georgia in 2003 and remarried. His son, who was in his early teens at that point, came to live with Craig in 2005. Based on a suspicion that he was not the biological father of the child, Craig obtained a DNA sample from the boy while he slept. A test confirmed Craig was not the biological father.

Continue reading "Court Awards Damages to Man for Intentional Misrepresentation of a Child's Paternity: Hodge v. Craig" »

A child support order between unmarried parents was nullified when the parents married each other, according to the California Court of Appeals for the Fourth Appellate District. In Re Marriage of Wilson and Bodine involved a challenge by a father to the state's assertion that he owed child support under an order, entered before the parents were married, for a period of time after the parties subsequently separated and divorced. The appeals court held that the parties' marriage to each other nullified the prior order, and remanded the case to the trial court to calculate the amount of pre-marriage child support owed.

The mother and father had a son in August 2001. They were not married to one another at the time. After the father filed a voluntary declaration of paternity, the mother obtained a court order under the same cause number for the father to pay $1,600 per month in child support in July 2002. The court further granted the mother full custody and gave reasonable visitation rights to the father. A daughter was born to the two parents in June 2003.

The mother and father married each other on December 31, 2005, and lived together for about two years. They separated on January 30, 2008. The court bifurcated the divorce matter into a proceeding on the status of the marriage and a matter on child custody and support. It issued an order of dissolution of the marriage on January 30, 2009, reserving the issues pertaining to the children. The parents shared custody of the two children by agreement since their separation.

Continue reading "California Court Rules that Child Support Order Was Nullified by Parents' Subsequent Marriage to Each Other" »

A bill pending in the California Legislature, SB 1476, would modify the Family Code by allowing a court to designate more than two people as legal parents of a child, if the court concludes that doing so would be in the child's best interest.

State Senator Mark Leno, D-San Francisco, introduced the bill on February 24, 2012. He says that it would amend California law to match the present reality of many families. State law allows a court to designate a person other than a child's biological parent as a legal "parent," but it explicitly limits the number of parents to two. The bill, if enacted, could impact children in families with unmarried parents, step-parents, or parents in same-sex relationships. Critics, in addition to rhetoric about changing the definition of family, contend that the bill could expose children to further stress in the event of a divorce, as custody could be split three or more ways, instead of just two.

Senator Leno's inspiration for the bill, according to Debra Saunders of the North County Times, was a child known in court documents as "M.C." M.C.'s biological parents had a brief relationship but never married. M.C.'s mother, "Melissa," married her former partner "Irene" during the brief period when same-sex marriages were legal in California. M.C.'s biological father, "Jesus," provided support for the child. Melissa later sought a divorce from Irene and started a new relationship. Melissa's new boyfriend, allegedly with Melissa's "complicity," stabbed Irene. Jesus, who by then lived in Oklahoma, sought custody of M.C. Because Irene was legally married to Melissa when M.C. was born, she was the presumed second parent under California law.

Continue reading "California Bill Would Expand Criteria for Legal Designation as Parent of a Child" »

A Tennessee woman who now resides in California must pay $150,000 in child support for the adopted child she gave up in 2010, according to a Tennessee judge's ruling. Torry Hansen made headlines when she reportedly put her adopted son on an airplane back to Russia by himself. The adoption agency filed suit against her for child support last year.

After adopting the then-7 year-old boy from Russia with the help of a Seattle-based international adoption agency, Hansen claimed that she became concerned with the child's behavior. According to Hansen's mother, the boy became violent, hitting and screaming at Hansen and threatening to kill family members. Hansen claims that her parents took him, and that they made the decision to send him back to Russia. No one ever contacted the police or the state's social services agency.

The boy arrived alone at the Moscow airport in April 2010. He reportedly had a note in his jacket pocket from Hansen, addressed to the Russian Ministry of Education, calling the boy "mentally unstable" and "violent," and claiming that he had "severe psychopathic issues/behaviors." The note accused the Russian orphanage of lying about the child's mental health. Russian officials vigorously disputed Hansen's descriptions of the boy, and the child reportedly spent six weeks in a psychiatric hospital due to emotional trauma. A Russian court ruled that Hansen's actions amounted to child neglect and abuse. The boy currently lives in a group home for children near Moscow.

Continue reading "Judge Upholds Child Support Order Against Woman Who Returned Adopted Son to Russia" »

An ongoing child custody dispute between actress Halle Berry and her ex, Gabriel Autry, took an unconventional turn in late June, when a judge ordered Berry to pay child support to Autry for their daughter, 4 year-old Nahla Aubrey. Berry must pay $20,000 a month to Aubrey under the judge's order. Berry has said she wants to move to Paris, France with Nahla. The specific custody arrangement remains to be determined.

The 45 year-old Berry began dating Aubrey, a 36 year-old model from Canada, in 2005. Their daughter, Nahla Ariela Aubry, was born in March 2008. The couple reportedly separated in April 2010. Berry started dating French actor Olivier Martinez later in 2010, to whom she is now engaged. She has stated that she wants to move to Paris not only because of her fiance, but also to escape from the intense media scrutiny that comes from being a celebrity in Los Angeles. Her wish to raise Nahla in Paris appears to be the major point of contention between her and Aubrey.

Aubrey filed a petition in Los Angeles Superior Court on December 30, 2010, asking the court to formally recognize him as Nahla's father. He and Berry, according to his court filing, had already signed paternity documents. Since they were not married at the time of the child's birth, Aubrey has no legal presumption of paternity. Aubrey also asked the court to award joint custody of Nahla to both parents.

Continue reading "California Child Support: Halle Berry Ordered to Pay $20,000 Per Month in Child Support, Still Wants to Move with Daughter to Paris" »

Supermodel Linda Evangelista has settled a child support dispute with billionaire businessman Francois-Henri Pinault, her ex-boyfriend, relating to their five year-old son. The case revealed extravagant expenses and costly security measures for a child of two extremely wealthy individuals. It also displayed many features common to child support disputes at any income level, such as an exploration of the non-custodial parent's involvement in the child's life and the nature and necessity of claimed child care expenses.

Evangelista has worked at the highest levels of fashion modeling for over twenty years and has amassed a fortune doing so. She is credited with the iconic quote, "We don't wake up for less than $10,000 a day." She gave birth to a son, Augustin James, on October 11, 2006, and at the time did not disclose the identity of the father. In July 2011, she stated that French businessman Pinault was the child's father. Pinault is the owner of a Paris-based company that owns Gucci and other high-end brands. He is married to actress Salma Hayek, although the two were not married at the time the child was conceived. Pinault and Evangelista briefly dated in 2006. Pinault has three other children, two from a previous marriage that ended in divorce and one, now four years old, with Hayek.

Continue reading "Supermodel, Billionaire Settle Child Support Dispute" »

A 33 year-old Tennessee man, Desmond Hatchett, has requested a break on child support from a family court in Knoxville, citing difficulties making ends meet. Hatchett has allegedly fathered thirty children by eleven women, possibly a record from Knox County. His case illustrates the sometimes bizarre balance family courts must strike between children's need for support and parents' need to support themselves.

Hatchett's thirty children range from toddler-age to fourteen years old. He reportedly told a television reporter that he was finished having children in 2009, when he only had twenty-one children. Hatchett must pay fifty percent of his income towards child support, but that amount is divided among eleven families. Hatchett currently works a minimum wage job. According to the Los Angeles Times, one of the mothers only gets $1.49 per month from Hatchett.

Hatchett is an extreme example of a common phenomenon, a parent without primary custody who must pay child support to the other parent, but who struggles to make the payments. Both of a child's parents owe a duty to support the child, so in cases where the parents live separately, the non-custodial parent may be obligated to pay the other parent periodic child support. California law bases the amount of the child support obligation on a parent's monthly income and the amount of time the child spends with that parent. At a maximum, a parent must pay fifty percent of their monthly income towards child support. The law presumes that children should enjoy the same standard of living as their parents, but also that parents should pay for the support of their children according to their own ability. This system usually works with families of only a few children. When a child support obligor must support a large number of dependents, it becomes more complicated.

Continue reading "Father of 30 Seeks Help With Child Support Bill" »

The state of California ran a exercise in March 2012 to test its ability to operate its child support system from a remote location in the event of a disaster. The procedure established to do so partly involved transporting computer storage devices containing the data needed to run the child support system to a secure location. The exercise reportedly went well with one exception: the contractors employed by the state to run the exercise lost four storage cartridges containing as many as 800,000 California child support obligors' personal information. This may include not only the obligors' names, birthdates, social security numbers, and home addresses, but also names of employers and health insurance providers.

Child support consists of a parent's (or other adult's) obligation to make payments for the care and support of that child (or children) to the person having actual custody of that child. This is most commonly one parent paying support to the other parent, but other arrangements do exist. A person paying child support often also provides health insurance or other medical support for the child. An obligor's net monthly income usually determines the amount of support, so the obligor's employment and income information are highly relevant to the child support office's work. Keeping this information secure is extremely important.

The loss occurred on March 12. The cartridges were reportedly at an IBM testing facility in Boulder, Colorado. After the successful tests, Iron Mountain was to transport the cartridges back to California. Since Iron Mountain only offers ground transportation, it reportedly arranged to have FedEx fly the cartridges back. A spokesperson for California's Office of Technology Services told the Associated Press that the container may have been inadequately secured, causing the cartridges to fall out. The cartridges vanished somewhere in transit between Boulder and Sacramento.

The Department of Child Support Services said that the loss of the cartridges will not delay processing or payment in child support cases. The state notified the three credit reporting agencies of the security breach. It also notified all obligors and others possibly affected by the breach via e-mail on March 12. It recommends that people who may have been affected protect themselves from possible identity theft by putting fraud alerts on their accounts and requesting copies of their credit reports.

Continue reading "California Loses Storage Devices Holding Personal Information of 800,000 Child Support Obligors" »

The California Fourth District Court of Appeals in San Diego ruled earlier this month that a parent or spouse's obligation under the Family Code to disclose changes in financial status to the other party does not extend past the date a court enters a final judgment. The court reversed the trial court's order imposing sanctions against an obligor ex-husband and father, which were based in part on a failure to disclose certain financial changes after a divorce decree was granted.

This case could have a significant impact on how California parents handle child support issues after entry of a decree, and it will be important for parents who have child support orders, both as obligor and obligee. An obligee, who receives payments from the other parent, has an interest in knowing if that parent is not paying the full amount of which they are capable.

The parties in this case have three children. All of the children were minors when the mother filed for divorce from the father in Wyoming in 2003. A Wyoming court granted the divorce in 2003. The wife and children relocated to San Diego, and a California court confirmed the decree in 2005. At the time of the divorce, the father declared an annual income of $800,000 and agreed to pay $8,500 per month in child support. The child support amount would reduce to $4,000 per month when only one child remained a minor. The father also agreed to pay monthly spousal maintenance of $12,000 for a ten-year period.

The mother brought an action in San Diego in 2007 to modify and enforce support. She requested an increase in the child support amount, enforcement of arrears on spousal maintenance, and court costs. Her financial declaration to the court indicated that she had a net worth at the time of $14 million and monthly expenses of over $40,000. The father's financial declaration showed significant changes from the time of the divorce. He had sold his business, his monthly income was less than $11,000, and he claimed to have $60,000 per month in expenses. He had earned $3 million from his business in 2006, which he had not disclosed to the mother. He had also brought in over $100 million in 2007 from the sale of the business, but later ventures had not been successful.

The mother asked for sanctions against the father for failing to disclose these sources of income. The trial court agreed, finding that he had "unnecessarily prolonged litigation" and breached his fiduciary duty. It increased his child support to $18,000 per month and ordered him to pay attorney fees and sanctions. The father appealed some of the trial court's holdings.

Continue reading "San Diego Court Places Limits on Parents' Duty to Disclose Financial Changes" »

Contra Costa County is in the process of clearing some of its old cases, and parents with an overdue child support balance may be in for a shock. The county has reportedly changed its computer systems four times in the past decade, and in the course of doing so failed to charge interest to some parents in arrears. Now it is adding interest to overdue balances on its books, including ones where previous audits indicated that no interest was due.

According to the Contra Costa Times, a glitch in the county's original software, installed in 1983, lacked the ability to calculate interest. An upgrade in 1998 included an interest-compounding function, but staffers at the Child Support Services Department were legally required to individually audit each case before applying interest charges. With a backlog at the time of over 70,000 cases, the county could not keep up with such audits. A statewide computer system to track child support payments took over individual county systems in 2008, but cases from before the 1998 upgrade in Contra Costa County still may not have interest applied to unpaid amounts. The Department estimates that about 1,000 cases remain from that period, and that it will need six months to audit them all.

A serious problem with many of these cases is that it will unexpectedly hit parents with an enormous bill that they almost certainly cannot pay. Although California law clearly permits the county to charge interest on overdue payments, the fact remains that substantial time had gone by with no notice to the obligor parents. The Times quotes one parent, now on Social Security disability, whose total overdue balance went overnight from $1,842 to $55,806 once interest was applied. The man states that the missed payments occurred between 1991, when he could no longer work due to health issues, and 1999, when the state began taking payments from his disability checks. The state never notified him of accrued interest on his missed payments during that time, although some bills noted that the balance "may not include accrued interest." His two children, the nominal beneficiaries of his payments, are now in their 30's, and his ex-wife continues to collect the payments.

The other side of the argument, of course, is that the obligee parent presumably had custody of the children and paid for their care the whole time the other parent's debt accrued. From the standpoint of that parent and the children, generally speaking, they simply were not receiving money to which they had both a need and a legal right. Just about any other debt includes interest penalties when it goes unpaid, so a lack of notice from the state may not be such a great excuse.

Continue reading "Northern California County Pushes for Overdue Child Support" »

You have heard that California divorce courts make child custody decisions based on the Best Interest Of The Child. Therefore, if mom is primarily available to raise a child and she's doing a good job, while dad is hard at work making a good income, then, while unfair to some, it's easy to see that the court will order primary physical custody of the child to mom. Further, the court would order dad to pay a significant amount of child support. However, what if mom does something that causes mom to lose much of her custody time to dad? Would the court still order dad to pay a significant amount of child support to mom?

As a San Diego Certified Family Law Specialist attorney, much of my time is spent in reading new cases and following changes in family law and child custody law. In researching, I came across an appellate court decision at the same time pop celebrity news was circulating the story of Jon Cryer's failed attempt to substantially lower his child support. This celebrity divorce story combines all of the elements of interesting news and legitimate legal education as to California child custody and support law. Actor Jon Cryer divorced Sarah Trigger in 2004. Reportedly, after a change of the custody order where Sarah only has a four (4) percent time share with the child, Jon motioned the court to terminate or greatly reduce his child support order. His motion failed; he appealed and lost. Why?

When the divorce judgment was entered in 2006, Sarah had a 65% time share of the child and Jon (actor on the popular Two and a Half Men TV show) was ordered to pay $10,000 per month in child support. Within a few years after the divorce, the court intervened and removed the child from Sarah pursuant to a report (and evidence presented) regarding neglect. Jon requested that his child support order be lowered to zero as Sarah, for all practical purposes, no longer was raising the child. The court reduced Sarah's child support from $10,000 per month to $8,000 per month even though her custody time had been reduced from 65% to 4%. Jon appealed however was he overlooking the factors of the child's "best interest" and his overall income available for support?

Continue reading "How Does Child Custody and Child Support Go Hand In Hand?" »

CBS 8, San Diego, reports a story of a congressman who reportedly owes over $100,000 in unpaid child support. Those opposed to the politics of the congressman are responding to this news by stating that his career is not effectively over. That he cannot go out into the public and campaign or speak as to financial matters when he cannot legally and properly handle his own financial matters. The congressman reports that the news stories are politically motivated and that individuals are attacking him to make him less effective as they disagree with his political views.

As a San Diego Certified Family Law Specialist attorney, my office handles cases involving the two family law issues that go hand in hand, namely child custody and child support. The child support laws in California provide that there are many factors that will determine the amount of a child support order. One such factor is the amount of child custody time that is awarded to the child support paying parent. In other words a parent who has 50% child custody will pay less child support than a parent who has 20% child custody.

I further researched the child support delinquency problem and found a web page that claims that it has the father's point of view. Whether or not this is true, it quoted government sources that provided interesting statistics as to this problem. In a study from many years ago, $10 billion per year in child support in not paid. Likely the unpaid child support is much higher now than at the time of this study. The article goes on to state that government is not very effective in collecting unpaid child support. At this point I turned to the National Coalition for Child Support Options. The NCCSO is an organization that describes itself as a coalition of people from all around the country who are devoted to address the "national epidemic" of unpaid child support.

Continue reading "California Divorce Report: Child Support News" »