Divorce Considerations When You Have a Child with a Special Needs Disability

June 10, 2014

Divorce-kid-special-needs-001.jpgNot all divorces are alike. Particularly, divorces involving spouses who have a special needs child will have specific considerations that should be addressed during the divorce process. Some key issues that need to be considered during a divorce proceeding in regard to a special needs child include the following:

1. Physical Custody
In California, the courts award custody based on what is in the best interest of the child. However, one consideration is that the "cookie cutter" parenting plan for a typical child will likely not work for a child with special needs. Special needs children, such as children with autism, often have difficulty with transitions because they are not comfortable with changes in environment. In addition, a special needs child may not understand the concept of time like a typical child would. The goal should be to design a parenting schedule that prioritizes the child's unique medical, physical and mental needs.

2. Legal Custody
Legal custody is about which parent will make the decisions with regard to the child's health, education and welfare. In the case of a special needs child, it is very important that the parents advocate in unison with regard to matters involving the child's placement, services and therapies. Special needs children typically have a team consisting of doctors, therapists, school personnel and childcare providers. If the parents are unable to work together with the team to make these decisions, then the court should be requested to decide which parent should be the one to have such decision making authority.

divorce-special-needs-001.jpg3. Child Support
When litigating your divorce case, it is important to educate the judge as to the unique requirements of a special needs child. You may want to request that the court consider unique un-reimbursed expenses that relate to caring for a special needs child. Although the Court uses a formula to calculate child support, that amount may be adjusted for cases in which the children have special medical or other needs that require child support to be greater than the formula amount. The Court may consider a wide range of add-on expenses such as various therapies, special schools, medication, which the special needs child require to facilitate his or her progression. Another consideration to keep in mind is that child support may even extend beyond age 18 in certain circumstances.

4. Medical Insurance/Life Insurance
Families with a special needs child typically spend thousands of dollars each year in uninsured medical expenses. Consequently, it is important that divorcing parents address the topic of medical expenses (including health insurance premiums and uninsured medical expenses). Also, in some states, such as California, the court may order a parent to secure his/her child support obligation through a life insurance policy.

Continue reading "Divorce Considerations When You Have a Child with a Special Needs Disability" »

How to Celebrate Your Divorce Once It's Final

June 9, 2014

divorce-vacation-001.jpgOkay, so it might sound a little crazy to think that you can celebrate a divorce. But why not?! You've spent the past months or possibly years either settling or litigating your case so you deserve a celebration! Just make sure your divorce is actually final before you begin the celebration festivities.

One way to celebrate the newly single you is by taking time away and going on a "divorcation". Whether it's a trip with your best girlfriends or an adventurous getaway by yourself, traveling can help free the mind of all of the stress and emotions you have endured throughout the divorce. Spending time in warm weather will also help lift your spirits. And if you're looking to mingle and meet new people post-divorce, a cruise might be the way to go.

Divorce-cake-001.jpgAnother way to celebrate your divorce is to throw yourself a divorce party. This means inviting all of your friends and family who helped get you through what was arguably the most difficult time in your life and ordering a divorce cake...and yes, many bakeries are quite accustomed to this request.

If the divorce has left you with empty pockets then maybe a "divorcation" or big party isn't the best choice. Instead, grab your PJ's, a big bag of popcorn and find a comfy seat on the couch to watch one of the 10 best divorce movies of all time... Irreconcilable Differences, Stepmom, Liar Liar, Kramer v. Kramer, First Wives World, Waiting to Exhale, Mrs. Doubtfire, Jerry Maguire or Along Came Polly.

Celebrating your divorce also requires you to celebrate YOU and your newfound independence. Start by getting a new cell phone number or think about going back to school to get that advanced degree that you always wanted.

However, before you begin planning your divorce celebration, whatever it may be, you need to be sure that your divorce is actually final. In California, your marriage cannot be terminated until at least six months and one day from the date that you or your spouse served the petition for divorce and the court summons or when you/your spouse responded to the petition. However, your divorce does not automatically become final at the end of the six months. But rather, your divorce is final after the judge signs the divorce Judgment. The court clerk will then mail the divorce judgment to each spouse (or their respective attorneys) and the date that the judgment was filed will be stamped in the upper right corner.

Continue reading "How to Celebrate Your Divorce Once It's Final" »

How Do Digital Assets Get Divided in a Divorce?

June 3, 2014

digital-asset-world.jpgDuring a divorce, a judge, a mediator or the parties will make decisions regarding how to divide the marital property, like the residence, the vehicle, savings accounts, and stocks accounts. But what about the couple's digital assets, like their iTunes music library, MP3s, Kindle eBooks library, etc.? These assets aren't exactly tangible, yet they may still be considered martial property subject to division during a divorce.

Digital assets are comprised of intangible goods such as digital books, music and movies. These are most typically stored in iTunes accounts or other MP3 storage accounts and Kindle eBook accounts. Digital assets can even include digital storage, social media accounts and blogs. These digital assets raise the question of whether they are subject to division during a divorce and whether or not they can be valued.

Although there is not much law on this subject, when it comes to the division of digital assets, many states will divide the digital assets using an "equitable distribution" system to divide, allocate and value these assets. The "marital property" will be assigned a value and then it will be distributed equitably, or fairly, between the spouses. Such division does not always result in a 50/50 split, but rather it is what is considered a fair split.

digital-asset-division.jpgHowever, just like a car cannot be split in half, neither can many digital assets. Additionally, unlike the ownership of a car which can typically be transferred quite easily to the other spouse, transferring ownership of digital assets is not always feasible. In fact, some user agreements do not even allow for transferring ownership. A judge's ruling will not even supersede these user agreements. To resolve the issues that division of digital assets pose, the spouse who owns the iTunes and Kindle libraries may be awarded them, while the other spouse may be awarded a different asset in leui. Another option is for the spouse who is awarded the asset to "buy-out" the other spouse based on the value of the asset awarded to him/her.

Although the division of digital assets is a relatively new area of the law, as more digital products continue to develop, I suspect that divorce attorneys will see a lot more issues involving digital assets and thus a lot more law on the topic.

Continue reading "How Do Digital Assets Get Divided in a Divorce?" »

To Settle or Litigate...That is the Question

June 2, 2014

litigate-win-win.jpgWhen going through a divorce, there are a lot of decisions that need to be made. Who will get the house? Who will the kids spend the holidays with? Who keeps the beloved family pet? These and many more questions will come up throughout the divorce process and will require either you and your spouse or the Judge to make a decision. One decision, however, that will be up to just you (and hopefully with the cooperation of your spouse) is whether to litigate or mediate some or all aspects of your divorce.

It's common to want to take everything to trial when there are a lot of fuming emotions between you and your spouse. Many spouses feel that if they litigate their case, it will act as a type of revenge against their spouse. However, before you shut your eyes to the option of mediation or otherwise settling outside of court, here are a few things you might want to consider:

Money, Money, Money! Can you really afford the expense of a trial? If you have sufficient funds in your back pocket to fight your case and you aren't in a hurry to get the divorce over with then ligation might be the avenue you want to take. However, keep in mind that it is very likely that the cost of going to trial will be greater than the amount of money you would lose by agreeing to your spouse's settlement offer. This doesn't necessarily mean that you need to agree to an unfair offer just to avoid trial on the issue. Such a decision really requires a cost-benefit analysis. If you are on the fence, your divorce attorney can walk you through the pros and cons of settling an issue outside of court or taking it to trial. It's important to look at the big picture and decide if a $1,000 issue is worth possibly spending $10,000 in court to fight over or not.

Can you handle the heat?! Can you and your family withstand the immense amount of stress that comes with a trial? Litigation can be not only financially draining but also emotionally draining. You aren't only putting an immense amount of stress on yourself, but also those who are standing by you throughout the process (your children, your family, your friends). However, some issues are simply worth the stress. For instance, if you are fighting for custody of your child, the stress of a trial is minor compared to the stress that you could potentially endure in the future if not awarded custody.

litigate-gavel.jpgRisk Taker or Risk Averse? How much are you willing to hand over control to a Judge? When going before a Judge there is no guarantee as to whether or not he/she will see things your way. So even if you think the Judge's decision is unfair, it will be final (unless there are grounds for appeal). If you are willing to take that risk then go for it. But if you are more risk averse you may want to consider the benefits of settling with your spouse outside of court.

Continue reading "To Settle or Litigate...That is the Question" »

What Can I Do if My Spouse Lies About His or Her Income?

May 27, 2014

hidden-income.jpgIt is a common fear in family law cases that one spouse will lie about his or her income in order to avoid a high child support or spousal support order. This can become a serious concern if the spouse is self-employed or a business owner who can manipulate evidence regarding his or her income. Especially in the case of a long-term marriage, the parties believe they can make a good approximation regarding the income of their former spouse. Often, spouses are shocked when they receive a copy of the income and expense information form prepared by the other party. Although there may be a disconnect between what you believe your spouse earns and what your spouse is telling the court he or she earns, it is important to do your due diligence and investigate your suspicions before making accusations to the court.

The first thing you can do to find out if your spouse is really lying about his or her income is to conduct formal and informal discovery regarding your claim. Informally, you can begin gathering documents which can provide you and your attorney with a snap shot of the monthly family spending. Review bank statements and credit card statements for information regarding how much money your family spends each month to maintain your current lifestyle. Once you have gathered documents which can provide you with information regarding your monthly family expenditures, you and your attorney can compare that information to the gross income your spouse is claiming he or she earns. In addition, you can gather joint tax returns and financial documents for previous years from your CPA or through your online tax service. It is helpful to compare prior tax returns with your spouse's current claims regarding his or her income.

hidden-income-puzzle.jpgFormally, your attorney can propound demands for production of specific documents and requests for specific information. If you do not believe your spouse will be truthful, even under oath, your attorney can subpoena various entities which have relevant documents in its possession. If you determine that your spouse's statements regarding his or her income are inconsistent with the evidence which has been acquired, you may have a cause of action against your spouse for breach of fiduciary duty. San Diego family courts impose a strict duty on spouses to disclose all material facts and information regarding income, expenses, assets and debts. If one spouse is not truthful with the other party and/or with the court he or she may face serious financial or criminal penalties.

Continue reading "What Can I Do if My Spouse Lies About His or Her Income?" »

Jury Trial for a Divorce - Good or Bad Idea?!

May 26, 2014

divorce-jury.jpgIn most states, the right to a jury trial in a divorce proceeding does not exist. In California, no such right exists. Rather, all divorces in California will be heard solely by the Judge, not a jury. However, in a limited number of states, including Texas and Georgia, whether you are the spouse who filed for divorce or the spouse who received a divorce petition, you have the option to request a jury trial during your divorce proceeding. Most of these states limit the right for a jury to only decide certain issues. In New York, for example, the circumstances are very narrow; a jury is only allowed to decide whether the parties meet the state criteria for divorce.

Texas offers the jury trial rights most broadly. In Texas, the jury consists of 12 jurors who may decide a number of issues. However, certain issues are still reserved for the Judge to decide. For example, the jurors in Texas can decide the issue of child custody, but the Judge will be the one to decide visitation and child support. Jurors in Texas can also determine the value of the assets, and determine which assets are considered separate property versus community property. However, the Judge will be the one to actually determine the division of such assets.

Offering the option of a jury trial in divorce proceedings is a hot topic of dispute. Supporters of offering a jury trial argue that it helps to ensure fairness by thwarting the Judge's potential bias. Many also support jury trials because they believe that it gives litigants more of an opportunity to tell their side of the story. Another benefit of offering the option of a jury trial in a divorce proceeding is that it encourages parties to try and settle outside of court, since a jury trial is a risk for both sides no matter what the facts of the case are.

divorce-jury-scales.jpgHowever, many oppose the idea of a jury trial in a divorce because they aren't keen on the idea of having the details of their private lives displayed before a dozen strangers. Additionally, divorce proceedings are expensive enough. Adding the option for a jury trial is likely to cause the divorce proceeding to be even more time consuming and expensive

Continue reading "Jury Trial for a Divorce - Good or Bad Idea?! " »

Types of Spousal Support

May 23, 2014

spousal-support-flower.jpgIn San Diego and throughout the state of California there are two types of spousal support which can be awarded by a family court judge. The two types of spousal support are temporary (pendente lite) spousal support and permanent (long-term) spousal support. The type of spousal support awarded is dependent on what point in the case the award is made. Often times family law litigants have various questions about spousal support especially after their first spousal support hearing. One of the most frequent questions asked is, "How long will the spousal support order last?"

Prior to entry of Judgment, any spousal support award made by the family court judges will be a "temporary" spousal support order. At the end of a dissolution case, the court will reevaluate the amount of spousal support being paid and make an ongoing "permanent" spousal support order. When parties first separate, one spouse may not have access to community funds and therefore he or she must request a hearing immediately to obtain an order for support. At times, that first rush to judgment can result in a slightly higher or slightly lower amount of support than may be appropriate on a more permanent basis.

In making a "temporary" spousal support order, the family courts in California are not as restricted using discretion than other court systems. For example, many other state court judges are required to apply a specific formula which considers the parties' incomes and various other factors. In California, although many family court judges make spousal support awards using a default formula, they are not required to. In practice, family court judges often refer to the spousal support amount as suggested by guideline formulas and make awards based on that information.

spousal-support-gavel-001.jpgWhen family court judges make "permanent" spousal support orders, they must consider all of the factors outlined in Family Code § 4320. Most importantly, the court will consider the ability of the supporting spouse to pay support and the need of the supported spouse for spousal support. Family Code § 4320 also lists factors such as the length of the marriage, the age of the parties, the health of the parties, and any history of domestic violence. Becoming familiar with these methods for calculating spousal support can be especially helpful for parties' in settlement negotiations. The measuring stick for any proposal in negotiation is what the judge would likely do if the matter were to proceed to court. Therefore, having that information available can assist the parties with proposing and accepting reasonable solutions.

Continue reading "Types of Spousal Support" »

Expect the Unexpected: The Reality of Divorce

May 22, 2014

divorce-reality-couple-001.jpgWhen people think of the word divorce, they typically don't get those warm fuzzy feelings. Divorce is not only a harsh word, but a harsh process for many San Diego residents. Below are some of the realities of a divorce that you might encounter along the way. My hope is that by making you aware of these realities, you are better equipped for staring divorce in the face and overcoming these sometimes unpleasant realities while also embracing the pleasant realities.

Expect a Divorce to Take Some Time: Unfortunately, most things related to divorce take longer than expected. Not only is the legal process of a divorce a waiting game, but the grieving process, healing process and acceptance process might be quite the waiting game too. Luckily, there is a light at the end of the tunnel, but be prepared for a long tunnel in most cases.

Don't Expect Everyone to Treat You With Compassion: Going through a divorce process is emotionally draining in many aspects. One thing that might come as a surprise is that not everyone you encounter is going to be as compassionate and empathetic of your situation as you would hope. Unfortunately, there are people out there who will judge your personal life and feel the need to express that judgment, even when you are in a tender place emotionally. There are others who will take sides and forget the relationship they once had with you. Consequently, it's important to build a strong support system, whether that's a group of friends, a therapist or a divorce group.

divorce-reality-beach.jpgYou're More Resilient Then You Think: A divorce can be an emotional rollercoaster. However, many of our clients have found that once the divorce is over and they have their lives back on track, they are able to bounce back and approach life with a new perspective.

Your Kids Are More Resilient Then You Think: Although a divorce can be very emotional for the children involved, depending on the age of the child, you might be surprised at how easily they are able to adjust to their new schedule or new surroundings as a result of the divorce. Intense therapy for your kids might not be as necessary as you once thought. However, during the divorce process it is recommended that you offer your children the option for counseling so that they have a neutral third party to talk with and express the many emotions they might be feeling.

Continue reading "Expect the Unexpected: The Reality of Divorce" »

Kim Kardashian and Kanye West Wedding Dilemma and "Pre-nup" Holdup

May 21, 2014

kim-kardashian-kanye-west-lg.jpgKim Kardashian and Kanye West are currently scheduled to get married on May 24th in a non-televised Paris ceremony. Rumors are flying that the wedding will not take place unless both Kardashian and West have signed their premarital agreement (commonly referred to as a "pre-nup"). Apparently, only two week before the wedding, the power couple has not finalized their pre-nup. The Kardashian-West premarital agreement is allegedly much friendlier than Kardashian's previous premarital agreement which was signed prior to her marriage to NBA star Kris Humphries. Therefore, the holdup does not appear to be the result of disagreement of the parties regarding the terms of the agreement. Likely the delay is the result of West's recent management change which has caused additional complications and changes to the agreement.

As long as the parties sign their agreement prior to the wedding, does it really matter when it gets signed? The answer to that question is "yes". Timing of the execution of premarital agreements is crucial especially if the agreement contains spousal support waiver provisions. In order to limit some of the objections to enforcement of premarital agreements, the party against whom enforcement is sought should be presented with the agreement and advised to seek independent legal counsel at least seven (7) calendar days before the date the agreement is signed. This procedure will ensure the parties had enough time to thoroughly consider the legal ramifications of the premarital agreement rather than just signing it immediately upon receipt.

prenup-agreement.jpgAlthough Kardashian and West will likely sign their premarital agreement just days before they walk down the aisle, their agreement will likely not be held invalid due to the timing of its execution. As long as Kardashian and West had ample time to review the agreement and seek the advice of counsel, they should be able to count on enforceability if a challenge were to be made on that basis. Further, although a court may conclude that the execution of a premarital agreement was done appropriately, the premarital agreement may be held invalid for a number of other reasons.

In particular, parties should be cautious to enter into agreements which seem "unconscionable" or especially unfair to one party. The unconscionability of a premarital agreement can invalidate the agreement if the agreement was unconscionable when executed or even if it has become unconscionable at the time one party is seeking enforcement. Competent legal representation of both parties at the time of negotiation and execution of a premarital agreement can save both sides significant time and money in the event of divorce if one of the parties has a reasonable basis to invalidate the agreement.

Continue reading "Kim Kardashian and Kanye West Wedding Dilemma and "Pre-nup" Holdup" »

Social Media Ruined My Marriage But Helped My Divorce

May 20, 2014

social-media-icons.jpgIn this day in age, social media seems to run our lives. We wake up in the morning and check our Facebook account. We upload a photo of our breakfast to Instagram. And we tweet about how our day at work is going. Social media sites like Facebook, Instagram and Twitter seem to dictate how we run our lives. Accessing these social media sites is as easy as a click of a button on your smartphone. Well it turns out that social media is not only running our lives, but also playing a part in both ruining our marriages and helping our divorces.

Divorce attorneys commonly note that irreconcilable differences are the reason for the divorce. Research has shown that these commonly used digital communications may be the culprit of the "irreconcilable differences" that develop between spouses. Social media websites are so easily accessible and so often used that they not only help create relationships but they also play a role in destroying relationships. For instance, due to the anonymity on some of the sites and the often encouraged non face-to-face contact, people seem to be more susceptible to temptations. Old flames tend to resurface or new flames are more likely to continue because retrieving contact information is so easy and opens the door to further communication. Social media sites also often times open the door to arguments because things posted by one spouse are misinterpreted by the other spouse. A harmless remark by one spouse may cause the other spouse to have major suspicions begin stirring. In essence, these social media sites are the culprit in facilitating emotional and physical affairs among married people.

social-media.jpgHowever, after a relationship ends and a divorce begins, social media may play a big role in helping your divorce litigation. Many San Diego divorce attorneys note that their clients are closely monitoring the social media sites of their soon to be ex-spouse. Not only are they reading what their soon to be ex-spouse has to say or photos he/she has to post, but they are taking screen shots of the social media page and downloading photos the spouse has uploaded onto the site. Spouses are noting down anything and everything that might impact their divorce proceeding, especially with regard to child custody determinations and hidden assets. Thus, spouses should be conscientious of what they post while participating in social media during divorce litigation.

Continue reading "Social Media Ruined My Marriage But Helped My Divorce" »

Tax Deductibility of Lump Sum Spousal Support Payment

May 19, 2014

alimony-spousal-support.jpgIn California divorce cases parties often overlook the tax treatment of their proposed actions when negotiating settlement agreements. A husband might say, "I will pay you more spousal support than child support because our child is turning eighteen (18) soon and child support will terminate." A wife might say, "I will pay you $100,000.00 if you just waive your right to spousal support." In order to compromise an attorney might propose, "Let's start with a high spousal support amount for the first year and step the amount down as time goes on." However, family law litigants should think carefully about these proposals because they all contain hidden tax consequences.

In a recent post-judgment modification case, Alice requested an increase in the amount of monthly spousal support she received from her former husband, John. The parties reached an out of court settlement and John agreed to pay Alice a lump sum payment of $350,000 in exchange for her agreement to waive any future right to spousal support. After the parties formalized their agreement, John paid Alice $350,000. As John was used to deducting his monthly spousal support payments on his tax returns, he deducted the $350,000 spousal support payment on his return the following year. The IRS disallowed all but one month's worth of spousal support as a deduction for John. On appeal, the tax court held that a lump sum settlement of future spousal support was non-deductible because the obligation to make the payment would not have expired in the event of Alice's death.

Generally, Congress draws a clear line between child support, spousal support, and property settlements in order to ensure that parties can only deduct payment of spousal support. Further, Congress has structured the law to ensure parties cannot structure property settlements that are disguised as spousal support. As is evident in this dramatic example, the ability to deduct $350,000 of spousal support versus being barred from such a deduction results in a radically different amount of money paid out-of-pocket. On the other side of this case, Alice received $350,000 in non-taxable spousal support which otherwise would have been taxed to her at her normal rate. Alice received substantially more net income than she otherwise would have.

alimony.jpgIn sum, taxation and family law is a complicated crossover of two different areas of law. Your property and support agreements may involve serious tax implications and therefore, it is always advisable to consult with a knowledgeable family law attorney regarding your divorce issues.

Continue reading "Tax Deductibility of Lump Sum Spousal Support Payment" »

Make Post-Divorce Co-parenting Easier With Apps

May 18, 2014

apps-phone.jpgIn today's day in age, most of us are guilty of being hooked on technology. If you're going to spend a significant portion of your day on your technology devices, then why not use that technology to your advantage when going through or after a divorce. Both during and after a divorce, problems often arise between spouses when there is co-parenting involved. However, there are several apps that you can download on your smart phone or iPad to help make co-parenting with your ex-spouse easier.

2houses: This app makes co-parenting easier by offering digital tools to allow both parents to easily communicate and make arrangements with regards to their children. The app offers everything from school to activities to medical issues. Both parents are able to view a joint calendar. There are also tools to help divorced parents sort out who will pay for what related to their children. Expenses can easily be entered and then the app will determine when a balance is achieved based on the input information that the parents put in. The journal on the app also allows both parents to share information about the children. Lastly, the information bank gives both parents access to vital details, such as phone numbers, immunization records, shoe size, etc.

Our Family Wizard: This app includes a calendar, journal, message board, expense log, info bank for safe storage of family information, and a notification center. Parents can utilize this app to share messages, communicate regarding expenses and update your ex-spouse about your child's appointment, all without having to involve the child as the messenger.

apps-kids.jpgCozi: This is another great app for sharing calendar items, to do lists and contacts with your ex-spouse. For instance, you might want to add contact information for your child's soccer coach or doctor's office so that both spouses have quick access to the contact information when he/she has custody of the child. The calendar is also great because it is a shared calendar, meaning if you add your child's dentist appointment on the calendar it will automatically show up on your ex-spouse's calendar and you can even send him/her a reminder through the app.

Baby connect: Keeping track of your child's feedings, diapers, sleep, medicines and activities can be difficult when custody of the child is changing hands between mom and dad. Using this app will help you keep track of all of this.

Skype: Skype is a great way to facilitate "face-to-face" communication via video chat between your child and the other parent when the child is in your custody.

These are just a handful of apps that help to make co-parenting life easier. Utilizing one of these apps has the potential to reduce tension, stress and fighting between the parents by allowing them to communicate without the need for face-to-face contact or using the child as the "messenger." In turn, both parents will more effectively stay informed about what it going on in their child's life, even when the child is in the other parent's custody.

Continue reading "Make Post-Divorce Co-parenting Easier With Apps" »

Beyoncé's Dad Avoids Child Support Obligation

May 17, 2014

beyonce and dad.jpgBeyoncé's dad, Mathew Knowles, is best known for his management of the all-female pop group, Destiny's Child. Since Destiny's Child has disbanded and Beyoncé has risen to the top as a solo artist, her father is no longer a millionaire manager. Recently, Mathew Knowles has not been in the spotlight for his talent, but rather for his ongoing dispute with Alexsandra Wright, the mother of his 3-year-old son. Although Wright and Knowles were never married, Knowles was ordered to pay $12,000 per month in child support in February 2013.

A few weeks ago, Knowles appeared in court requesting a modification of his child support obligation. The judge agreed Knowles was entitled to a reduction in child support and ordered payment of $2,485 per month. The modification of child support was based on Knowles claim that he experienced a reduction in income. Further, Knowles convinced the court that he was overpaying support under the previous order. As a result, the judge concluded that Knowles overpaid child support by $110,000. In order to equalize the overpayment, the court gave Knowles credit going forward for child support up to $110,000 at the rate of $2,485 per month. Therefore, Wright will not receive child support for approximately three and a half years.

beyonce-cash.jpgThe media is criticizing the judge for denying Wright child support for the next three and a half years because Wright is struggling to support herself and the parties' son. In order to cover the cost of groceries, Wright is receiving $300 per month in food stamps. Due to the involvement of public assistance services, welfare officials may pursue Knowles for some contribution for support. Although the overall result of this child support dispute may seem unjust, the judge's order does have some basis in California family law principles.

In San Diego, if a party files a request to modify support, that motion may not be heard for months. Or, on the other hand, it may be heard within thirty days. To level the "playing field" for those cases which might take longer to reach a courtroom (due to the court's busy calendar or unnecessary delay of the parties), California has instituted a policy of "retroactive support". This means that California family courts have the power to reach back to the date of filing for the motion and modify support as of that date. Often, retroactive support awards result in an overpayment or underpayment of support which is then addressed by the court. If there has been an underpayment of support, the court will look for a source from which to order payment of that amount or establish a reasonable payment plan. In this case; however, the judge determined an overpayment of support occurred and gave the father a credit for that amount.

Continue reading "Beyoncé's Dad Avoids Child Support Obligation" »

Will California Modify my Custody and Visitation Orders From Another State?

May 16, 2014

moving-boxes.jpgRelocation throughout the United States is generally a simple process; therefore, it is not uncommon for one or both parties to move to a different state after a divorce. In such cases, parents are faced with a jurisdictional dilemma with regard to their custody and visitation issues. Frequently as children get older their needs and schedules change significantly. In some cases the parents are able to adapt to new situations and reach agreements to modify outdated custody and visitation orders. However, in more high conflict cases, court intervention is necessary - especially if the parents no longer reside in the same state.

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") is the governing law for determining whether a court can exercise jurisdiction over a custody and visitation matter. Under the UCCJEA, a California court may not modify another state's custody order unless (1) the California court has jurisdiction to make an initial custody determination AND either (2) the court of the other state determines that it no longer has exclusive, continuing jurisdiction OR (3) a California court or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state.

moving-backyard.jpgCalifornia has jurisdiction to make an initial custody determination if California is the home state of the child on the date of the commencement of the proceeding. The "home state" is defined as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Therefore, unless California is currently the home state of the child, it will not proceed with the rest of the analysis to consider whether it can modify another state's order.

Once California has determined it is the home state of a child, the parties must meet item two or item three discussed above. If the court that made the initial child custody determination determines that it no longer has exclusive, continuing jurisdiction because the child and one parent fail to have a significant connection with the state and substantial evidence concerning the child's care, protection, training and personal relationships is no longer available in that state, California may modify another state's order. In addition, if none of the parties continue to reside in the state which made the initial custody order, California may modify an out-of-state custody order as long as all of the proper procedures have been followed.

Continue reading "Will California Modify my Custody and Visitation Orders From Another State?" »

Is Phone/Email Harassment a Basis for Restraining Order Against Ex-Spouse?

May 15, 2014

phone-harassment.jpgAccording to Fox News, a Florida man called his ex 145 times over the span of a mere 11 hours. Although he has been released from jail on bail, he now faces charges of aggravated stalking. If this situation were to occur in California, would the man's actions perhaps warrant an order of protection in the realm of domestic violence? Could he face any criminal consequences for his actions?

Unfortunately, divorce attorneys often deal with clients who are being abused by their ex or their soon to be ex and need legal protection from such abuse. Harassment may be considered a form of abuse. If the client and the other person have a close relationship (i.e. they are divorced, separated, dating, use to date, living together, used to live together or closely related) and the client has been abused or harassed by that other person, it falls within the realm of domestic violence. Divorce attorneys will typically assist the client with getting a domestic violence restraining order against the other person.

phone-harassment-teenager.jpgA restraining order, also known as an order of protection, is an order by the court that sets forth what conduct is or is not permitted between a person who has committed threats or violence against another person. Behavior that constitutes domestic violence for purposes of seeking an order of protection can be physical abuse, sexual assault, making someone reasonably afraid of being hurt, or harassing, stalking, disturbing someone's peace, etc. First, a Temporary Restraining Order must be obtained. Then, the Court will set a date for the parties to return to Court and request that the Restraining Order be made a Permanent Order. Also, according to Family Code 6320(a), "The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls"

Depending on the severity of the situation, you can also pursue criminal prosecution against the abuser or harasser. In fact, California Penal Code Section 653m (b) provides that "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor." So your ex calling you over 145 times during the span of a mere 11 hours, like what recently happened in Florida, could not only warrant an order of protection but may also be considered a crime punishable pursuant to the California Penal Code. Of course, excessive phone calls or electronic contacts that are made in good faith or during the ordinary course and scope of business, would not be punishable under the Penal Code.

Continue reading "Is Phone/Email Harassment a Basis for Restraining Order Against Ex-Spouse?" »