November 2011 Archives

The Impact of New Mate or Partner Income on Attorney Fees

November 29, 2011

As a San Diego Divorce Attorney, when a client remarries, he or she often wonders if their new spouse's income will impact child support and spousal support. Recently, a client in the midst of a divorce in which status was previously granted (meaning the parties were no longer married) but the issues of spousal support and attorney fees were not yet resolved, who was about to remarry, asked about the impact of new spouse income on the issue of spousal and child support.

Previously, I blogged about the impact of new mate income on child support and spousal support orders. To summarize:

1) For child support, except in "extraordinary cases," new spouse or non-marital partner income is generally not considered when calculating guideline child support, although the court may inquire into a new spouse's income for the purpose of seeing how it would impact the remarried party's tax filing status and tax bracket when calculating guideline child support.

2) With regard to spousal support:
(a) For the spouse receiving spousal support, spousal support usually terminates when he or she remarries, and there is a presumption of a decreased need for spousal support of he or she is cohabitating with a member of the opposite sex.
(b) For the spouse paying spousal support, the new spouse/partner income is not considered when determining or modifying spousal support.

After explaining this to the client, I was asked if the new spouse income would have any impact on the prior spouse's request for attorney fees. The client wondered if the court would consider the new spouse's income when considering the prior spouse's request for attorney fees. My initial thought was there should not be any consideration of new spouse income, however after conducting some research, I found a 2009 case, Alan S. v. Superior Court , which held while new mate or partner income is generally irrelevant in child support matters, it is not statutorily irrelevant in pendente lite fee orders.

However, after a closer analysis of the underlying facts in that case, we believe the holding is limited to a narrow circumstances, as it was more of a case regarding how the court, in low and middle income cases, can achieve the legislative goal of assuring that each party has access to legal representation to preserve each party's right.

In Alan S., after a string of custody hearings and orders, the trial court ordered Husband to pay $9,000 to Wife for her attorney fees at rate of $300 per month. Representing himself, Husband appealed the decision challenging the attorney fee order. Husband claimed the order impacted his own ability to retain counsel.

The Court of Appeal found that the challenged orders appear to assure that, while Wife is well represented by obviously able and diligent counsel, Husband will be left to "haplessly flail away" and reversed the attorney fee order, with directions to the trial court to hold another hearing to consider all relevant matters affecting Wife'sfee request, including factors such as Husband's $800/mo deficit financed by credit cards; the assets of parties, including equity in residences; Husband's inability to afford to visit the children; Husband's $25,000 credit card debt for previous attorney and $1,800 per month child support obligation; and the new mate or "significant other" income of each party (Husband was cohabitating and Wife had remarried).

The Appeal Court's decision relied on Family Code §2032, which requires court to consider parties' needs considering the factors listed in Family Code §4320. Reading statutes together, the Appeal Court believed the statutes make it clear that the pendente lite fee award should be the product of a nuanced process in which the trial court tries to get the 'big picture' of the case, i.e., 'the relative circumstances of the respective parties'. In the Alan S. case, the trial court took a truncated approach, and the record did not show that the trial court considered a number of the relevant factors bearing on the case, including the new mate or "significant other" income of each party.

The Court of Appeal also relied on a case called In re Marriage of Geraci , in finding that the new mate or significant other income was relevant for attorney fee awards because of "possible economies of scale," coupled with the "expansive language of Family Code §2032--the relevant circumstances of the respective parties."

The case was remanded to the trial court. The trial court, on remand, would have to consider new mate and significant other income (among other factors) when reconsidering the attorney fee award, however, the final orders that were made by the trial court are unknown.

It seems that new spouse or significant other income only came into play in the Alan S. case because the attorney fee award prevented Husband from being able to afford to retain counsel for an upcoming custody hearing, while Wife was able to afford to retain counsel. More significant than new spouse or significant other income are the issues of need and ability to pay under Family Code Section §2030, as well as many of the other Family Code §4320 factors, such as the income, assets and liabilities of the parties.

Judge Orders Exchange of Facebook and Dating Website Passwords in Custody Fight

November 15, 2011

Many of our San Diego Family Law client's use Facebook and other social network or dating webpages. This is not surprising considering that Facebook alone has more than 800 million active users. More than 50% of those active users log on to Facebook everyday and on average more than 250 million photos are uploaded per day. Almost every social network and dating website can be accessed by a cell phone or tablet.


We have previously blogged about the use of information from social network and dating websites in divorce cases. We have also previously cautioned readers of our blog (as well as our clients) regarding what not to post on Facebook and other social network and dating sites while going though a divorce. This includes NOT posting wild pictures of yourself, NOT tweeting about job woes or problems with the kids and NOT posting about drug and alcohol use. It is also important to adjust your privacy settings. In other words, do not post anything to a social network or dating website that you would want your former spouse, children or the family law judge in your case to see or read.

Recently, there have been some interesting and seemingly conflicting orders regarding requests for Facebook or other social network or dating website information.

In one case reported by the ABA Journal, a judge in a Connecticut divorce case ordered the parties' attorneys to exchange their clients' Facebook and dating websites passwords. Although the order stated that the parties themselves would not be given the passwords of the other, the order also stated for neither party to visit the other party's social network website and post messages purporting to be the other. You can imagine what one party must have posted on the other party's social network for that order to be made.

However, in another recent personal injury case involving an accident from 1993 in which the insurance companies denial of benefits did not question Plaintiff's limitations or need for care, the insurance company still sought, through discovery, the Plaintiff's Facebook password, a list of his Facebook friends, along with other Facebook activity and information including, all photographs, messages, status posts, wall posts, comments, groups, and group memberships. When the Plaintiff refused to provide the information, the insurance company filed a Motion to Compel to force the Plaintiff to provide the information. Fortunately for the Plaintiff, the court denied the Motion to Compel on the grounds that the Facebook information was not relevant or likely to make any disputed fact more or less likely, despite the insurance company's argument that Plaintiff's Facebook posts would likely contain information about the Plaintiff's daily activities and thoughts. The court found that any possible relevant information which could be gleaned through the Plaintiff's Facebook information would also be available to the insurance company through less intrusive, less annoying and less speculative means. The court characterized the insurance company's request for Facebook information as a fishing expedition at best and harassment at worst.

However, unlike in most civil cases, the information contained on a social networks and dating websites is often very relevant in family law cases, particularly to the issues of custody and visitation. It may also be relevant to the issues of property division and fiduciary duties.

In the Connecticut divorce case discussed above, one party was requesting full custody of the children and argued that the Facebook and dating website information was relevant to the other party's ability to take care of their children. Apparently, the Court was persuaded by the argument and ordered the exchange of passwords.

Another interesting argument, that has not yet been determined by the courts, is whether the type of order issued in the Connecticut divorce case is valid or enforceable in light of Facebook's Terms of Use Provisions. Following the Connecticut order would arguably violate the these two Terms of Use Provisions:

1) You will not solicit login information or access an account belonging to someone else. and;

2) You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

As long as social networks and dating websites continue to be popular, we anticipate that requests for information and pictures from them will become more and more frequent in divorce cases.

Continue reading "Judge Orders Exchange of Facebook and Dating Website Passwords in Custody Fight" »


November 1, 2011

As a San Diego Family Law Attorney, I often receive calls from former clients asking if they can find out their former spouses current income without incurring a lot of attorney fees or filing an expensive, time-consuming motion. Here are two examples of those calls:

• One former client suspected her Ex-Husband was earning significantly more than he was a year ago when their divorce was finalized because he recently bought a new car and moved into a bigger house. He refused to tell her his current income. If true, the amount of child support she receives could increase.

• Another former client knew that his Ex-Wife received a promotion, but did not know if a raise came with the promotion. She refused to tell him if she received a raise. If she received a raise along with her promotion, then his child support obligation would decrease, or depending on how much of a raise she received, he might be eligible to receive child support from her.


Fortunately for both clients, the Family Code provides for a way to obtain a current Income and Expense Declaration by permitting a party to engage in inexpensive post-Judgment discovery prior to filing a Motion for Modification of Child, Family or Spousal Support. More specifically, at any time after the entry of a Judgment of Dissolution or Legal Separation that provides for the payment of child or family support, either party, no more than once per year, may request the other party to produce a completed current Income and Expense Declaration with copies of that party's pay stubs and prior year state and federal income tax returns attached.

A request for a current Income and Expense Declaration with a copy of the prior year tax return and pay stubs is the only limited discovery allowed if a Motion for Modification or Termination of the Support Order is not pending. That means if a party wants to engage in other methods of discovery, such as Interrogatories (which are questions asked of the other party) or a Request for Documents, then he or she would first need to file a Motion for Modification or Termination of the Support Order.

By allowing a party to obtain an Income and Expense Declaration from their former spouse, the requesting party can determine whether filing a Motion for Modification is appropriate. If it turns out that there is no change of income, then the filing of a Motion for Modification could be expensive, especially if there is no (or minimal) change to the amount of support paid or received.

Sometimes, a former spouse will ignore the request for a current Income and Expense Declaration. If this occurs, the Family Code provides that if there is no response within 35 days, or if the Income and Expense Declaration is incomplete as to any wage information, or if pay stubs and income tax returns are not attached, then the requesting party may serve a Request for Income and Benefit Information directly on the employer of the other party. The non-responding party may also be sanctioned by the court for his or her failure to comply with the initial request.

Please contact us if you wish to obtain a current Income and Expense Declaration from your former spouse, or if you have received a Request for Production of An Income and Expense Declaration After Judgment from your former spouse.