San Diego Divorce Attorneys Blog

Recent winner of the $338 million Powerball jackpot, Pedro Quezada, has more money now then he probably knows what to do with. However, soon after coming forward as the winner of the fourth-largest Powerball jackpot in history, authorities revealed that this new multi-millionaire was wanted for outstanding child support payments totaling $29,000. Astoundingly, the arrears dated all the way back to 2009! Luckily for Quezada's ex-wife and his five children, who range from ages 5 to 23, Quezada can now finally pay up on the $29,000 of child support that he owes. According to the Passaic County Sheriff's Office, Quezada appeared in court recently to do just that.

The fact that Quezada was $29,000 behind on child support payments may leave many divorcing spouses left wondering what their recourse may be when the other spouse isn't paying up on ordered child support payments. Although not too common, this is especially the case when the obligor spouse (i.e. the spouse who has been ordered to pay child support) suddenly gets lucky enough to hit the lottery jackpot. It is likely that Quezada consulted with a family lawyer soon after winning the lottery.

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One such interception method used by family lawyers to enforce a child support order is known as the "Lottery Winning Intercept Program," which in essence automatically deducts money from the obligor's California State Lottery winnings and then forwards that money to the State Disbursement Unit (SDU) to pay past-due child support. However, family lawyers can only use this method after all taxes and tax liens have already been satisfied. (California Code of Civil Procedure Sections 708.730 & 708.795).

Read more from The Law Offices of Nancy J. Bickford on divorce and finances

Luckily for Quezada, he likely still has plenty of money left over after accounting for his taxes and tax liens. It is reasonable to think that the $29,000 in child support payment that he owed is now likely just a small chuck of change to him, and he probably won't even notice a $29,000 deduction from his lottery winning.

Continue reading "Family Law and the Lottery - Pedro Quezada Settles $29,000 Child Support Debt" »

Brendan Fraser and Afton Smith married in 1998 and divorced nine years later in 2007. At the time of their divorce, Fraser was ordered to pay Smith approximately $900,000 per year for spousal support and child support for their three children. Now, Fraser claims that he can no longer make the required payments, which, if made on a monthly basis, total $75,000 per month. Fraser has filed a motion in family court seeking a post-judgment modification of child and spousal support.

In San Diego, after a divorce is finalized, family courts generally have the ability to change support orders if facts and circumstances have materially changed since the first orders were made. If the moving party can prove to the court a "material change of circumstances" he or she may be granted a post-judgment modification of support. One of the most common changes of circumstance relied upon by courts is a change in income for one or both parties. If the spouse ordered to pay support has experienced a significant decrease in earnings, the court may lower his or her support obligation.

However, it is important to note that San Diego family courts only have the ability to modify the support order back to the date a motion was filed. If one spouse gets fired and does not file a motion to modify support for a few months, he or she may owe a significant amount of back child and/or spousal support. Regardless of a spouse's current income, his or her obligation to pay support will not change until a motion is filed with the court. Even in cases where a judge determines that a material change of circumstances exists and that support should be modified going forward, he or she is not required by law to make the order retroactive to the date the motion was filed.

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Fraser alleges that he has had an increasingly difficult time finding acting jobs since the third film in the "Mummy" franchise wrapped in 2008. However, according to IMDB, Fraser has worked on 17 projects since then. Smith claims that Fraser is lying to the court about his true income and hiding his assets. Smith has good reason to be suspicious of his earnings claims. At the time of their divorce, Fraser claimed that he would make $0 from future acting work. In fact he went on to star in movies grossing up to $2 billion worldwide. When confronted with this information, Fraser claimed deals like this were not "set in stone" at the time of his divorce. It is crucial for a spouse to present an accurate depiction of his or her income to the court in a family law case. If Fraser is in fact misleading the court and his ex-wife, he may face harsh penalties and sanctions.

Please contact us if you are contemplating legal separation, thinking of learning about divorce, or have questions regarding division of assets in divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorce, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights.

As we have previously blogged, Bethenny Frankel, former star of The Real Housewives of New York, and founder of Skinnygirl Cocktails, recently filed for divorce from husband, Jason Hoppy. The parties have a daughter, age 2.

Reportedly, the parties' separated on December 23, 2012 and Frankel filed for divorce just shortly thereafter (LA Times) It appears from Frankel's Petition that she is requesting primary physical custody of the parties' daughter and child support payable by Hoppy, in addition to life insurance, exclusive occupancy of their home and medical, dental, vision and orthodontic care for her and the child. Sources estimate Frankel is worth at least $25 million. This begs the question: Is child support appropriate in cases where the custodial parent is an extraordinarily higher earner?

Under Family Code section 4053, "[I]n implementing the statewide uniform child support guideline, the courts shall adhere to the following principles:

(a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent's actual income and level of responsibility for the children.

As such, regardless of Frankel's ability to support the parties' daughter, the court is tasked with ensuring Hoppy shares in that responsibility as well, pursuant to the statewide child support guideline. The guideline must account for both parents' actual income. In this case, CelebrityNetWorth.com reports that Hoppy has a net worth of $5 million himself, the majority of which he made as a high end New York real estate agent. His income must be considered in determining whether a support order is appropriate in this case.

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The statewide child support guideline is presumptively correct. If, under the statewide child support guideline, Hoppy is obligated to contribute to the support of Bryn, might he be able to somehow "rebut" the presumption? Could Hoppy perhaps show the court that he too has an extraordinarily high income such that presumed support would exceed the needs of the child, and in doing so successfully rebut the presumption?

Family Code section 4057 provides: "(b) [t]he [presumed child support award i.e. the guideline amount] may be rebutted by admissible evidence showing that...(3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the child." To date, no case has defined "extraordinarily high income" for purposes of this section. Rather, it appears to be left to the discretion of the judge to determine what level of income may qualify. A judge may consider the local economic conditions in his or her analysis. But, because under Family Code section 4053 as mentioned above, "children should share in the standard of living of both parents" (Fam. C. section 4053(f)), consider that the needs of a child are relative to the parents' income, even if that income is extraordinarily high.

It should be noted that before a judge can deviate from guideline child support, he or she must first calculate the guideline amount based, generally, on both parents' incomes and their respective time share with the child. Only after that is done can a court go on to make the necessary findings as to why a different amount should be ordered. (Fam. C. section 4056(a)).

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 today.

In California, the Family Court System is designed to encourage parties to settle disputes and reach agreements regarding contested issues. Specifically in Del Mar and throughout San Diego County parties are required to attend a Mandatory Settlement Conference before their case can proceed to trial. However, despite this strong public policy towards settlement, the California Court of Appeal has clearly drawn a line between what parties can and cannot agree to.

In this Court of Appeal case, Mother (Kristine) first filed a petition at the trial court level to establish a parental relationship between her son, Seth, and his biological father. Since the parties were not married at the time of conception or birth, there was no presumption that Father (David) was in fact Seth's father. Once the court determined, through the use of a paternity test, that David was Seth's biological father, the parties entered into a stipulation. A stipulation is an agreement that can be filed with the court and creates enforceable orders. Kristine and David stipulated that David consented to terminate all of his parental rights and Kristine agreed to waive any claim for future child support. In short, the parties agreed to terminate David's parental rights and responsibilities.

Over the objection of Minor's counsel, the trial court was persuaded by the parties' argument that they had the right and ability to contract regarding their respective parental rights. David argued that proceedings to terminate parental rights are not necessarily linked to a pending or contemplated adoption therefore he should not be prohibited from terminating his on the basis that Seth would only be left with one parent. The trial court was also persuaded in part by case law in which the court upheld agreements made by parents prior to conception of a child such as in artificial insemination and surrogacy cases.

Ultimately, on appeal, the trial court's decision was overturned. Although the Court of Appeal agreed that the parties had a compelling interest in deciding how parental rights should be allocated post-birth, it ruled against them. The Court based their ruling on the child's best interest. Because the establishment of the parent-child relationship is the most fundamental right a child possesses, the Court viewed a voluntary termination of parental rights (absent exigent circumstances) as equivalent to depriving the child of a basic constitutional right. The Court held the position that a waiver of parental rights is only an agreement of convenience for the parties and does not consider the best interests of the child. Here, Kristine would not be inconvenienced if David ever changed his mind and wanted to be a part of Seth's life and David would not be inconvenienced if Kristine changed her mind and sought child support. Thus, as evidenced by this decision, the best interest of the child is a powerful standard that trumps the parties' ability to make agreements regarding parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford iis the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Child support, if ordered, is an ongoing parental obligation that usually terminates when the child reaches eighteen years of age, graduates from high school, becomes married or is otherwise emancipated. The amount of child support owed is dependent upon a number of factors such as the income of both parties and the needs of the children. Child support is strictly enforced in a number of ways. Boxing champion Evander Holyfield recently learned that the court's ability to enforce child support extends to celebrities. Holyfield was held in contempt of court for failing to pay past due child support.

In San Diego County, the Department of Child Support Services (DCSS) is one state entity that enforces child support orders. Holyfield was pursued by the Georgia Department of Human Services, which serves a similar function as DCSS. The Georgia Department of Human Services includes the Division of Child Support Services. By the time that the State of Georgia became involved in Holyfield's case, his daughter, Emani Holyfield was eighteen years old and he owed $372,097.40 of unpaid support. By the time he was held in contempt of court, Holyfield's debt had reached a staggering $563,000.00. The court ordered Holyfield to make payments in the amount of $2950.00 per month. In order to get a head start, Holyfield immediately made a payment of $17,700.

To ensure future compliance with the court's order, the judge ordered a percentage of Holyfield's income be used to pay down the support debt. In California, a party or DCSS can file a Earnings Withholding Order for Support. This is commonly known as a wage garnishment. Pursuant to a wage garnishment, a part of the paying party's salary is given directly to the party entitled to either spousal or child support. It is important to note that a court must usually authorize a wage garnishment before an employer can enforce it.

The wage garnishment process can help the process of paying support move along smoothly for both parties. The party relying on the support will be sure to receive it on time and the paying spouse will not have to stress or worry about making the payments each month. Additionally, a garnishment further limits the contacts between the parties, which can be helpful in high conflict cases. While some parties may argue that a wage garnishment is embarrassing, it is a common method of collecting support. The payroll or human resources department of many organizations are highly familiar with the process because it is rather common. If you are entitled to support and the payor is delinquent or late in his or her payments, you may want to consider seeking a wage garnishment.

Please contact us if you are considering a divorce from your spouse, a legal separation , or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

As we have previously blogged, child custody laws and presumptions have evolved over time in San Diego. Recently, some states, including the Commonwealth of Virginia, are moving toward a new way of thinking when it comes to child custody and visitation. These states intend to eliminate the concept of "custody" all together. Instead of determining custodial rights of parents upon divorce, courts would instead determine "parental responsibilities." This change would reflect a shift in how children are viewed in society. The idea of "child custody" originated when children were still seen as "possessions" to either be won or lost in a divorce proceeding. Just as the term "wife" has evolved, the concept of children as property has faded from the American conscious. Now, certain states are beginning to change the wording of family law statutes to reflect this modern shift.

By eliminating the word "custody" in favor of phrases such as "parenting time" and "decision making," litigants can better focus on the specific actions of each parent in order to determine which future course of action is in the best interest of the child. The intent behind the new wording is to create a different mindset for all those involved in the case. The change encourages parents to narrow in on parental duties, instead of viewing children as property. Additionally, family courts will have greater latitude and more options when creating a comprehensive parenting plan. The judge will not be forced to place every case in a predesigned box such as those labeled "joint custody" or "sole custody."

Under the California Family Code, a judge may award physical or legal custody. Although the word "custody" is used to describe both, the two terms have drastically different consequences. A parent awarded legal custody has the right and responsibility to make decisions regarding the child's health, safety and wellbeing. A parent awarded physical custody will have the right to spend time with the child. The proposals for change in other states attempt to clearly establish a separation between parenting time and decision-making. The spirit of the existing law will be preserved in this area; however, the new terminology is intended to change how these parental responsibilities are viewed. Proponents argue that the use of the word "custody" to describe both parenting time and decision-making is confusing to the layperson and average litigant. By actually describing "legal custody" as decision-making and "physical custody" as parenting time, the two concepts will be better understood throughout the litigation process. Additionally, the word "visitation" will also be eliminated from family law jargon. If one parent is awarded physical custody of the child, usually the noncustodial parent is awarded visitation rights. This term will be replaced with "parenting time" as well in order to reduce confusion.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

National bodybuilding champion, Ronnie Coleman, was sued for child support by the mother of his children, Jo D. Jo D. requested that Coleman pay support in the amount of $4,000 per month for the care of their triplets. This is a typical scenario in San Diego family law cases because parents are often sued for past due child support. However, Coleman had a winning argument against payment because he was merely a sperm donor. A California appellate court determined that a sperm donor does not have to pay child support as long as he is not married to the recipient mother.

The relationship between Coleman and Jo D. blurred the lines between natural father and sperm donor. The two had a sexual relationship while they both lived in Texas as neighbors. Later, Jo D. moved to California and Coleman provided his sperm at California Cryobank, Inc. so that she could be artificially inseminated. Shortly after the birth of triplets resulting from the artificial insemination, Coleman married another woman. At birth, Jo D. listed Coleman on the triplets' birth certificate as their father. One year later, she brought a lawsuit to collect child support against Coleman.

Under the California Family Code section 7613(b), "the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor's wife, is treated in law as if he were not the natural father of a child thereby conceived." This presumption is not absolute and can be overcome in various ways by the father such as: marrying the mother, publically declaring parentage of the child in a manner specified by statute, receiving the child into his home or opening holding the child out to be his natural child.

Here, although Coleman and Jo D. agreed to this sperm donation arrangement, Coleman has since acted inconsistent with any indication that he intended to be a natural father to the children and involved in their lives. Since the birth of the children, Coleman did not marry or attempt to marry Jo D. In fact, he married another woman just months after the birth of the triplets in 2007. Further, Coleman did not open his home to the children nor did he hold them out to be his natural children. Therefore, as the appellate court correctly held, Coleman is not responsible to financially support the children despite his sperm contribution.

Typically, all orders made in family law cases concerning children are based on the best interest of the child. Although it is likely in the triplets' best interest for Coleman to pay support, the interest of sperm donors to be free from the financial obligation of their contribution overrides the application of the best interest standard.

Please contact us if you have questions regarding child custody and visitation or child support. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement "or else." The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

Harsh mudslinging has been a common tactic throughout the Raymond custody dispute. Tameka has accused Usher of being behind in child support payments in the amount of at least $34,000. Tameka has also alleged that Usher is an unfit father because he has a habit of doing drugs, specifically prescription pills, in front of their children. As a result of this allegation, she has requested Usher be ordered to undergo drug testing. Usher has denied any drug use and in addition is requesting more time with his children. We have recently blogged about the divorce and the effects on children. In order to promote stability in the children's lives, many resources are available to divorcing couples or adverse parties in custody disputes.

Last year, Tameka requested that the court reduce Usher's custody and visitation rights to their two sons. The children are still very young, the oldest, Usher V is four years old and the youngest, Naviyd, is just three years old. In order to be successful in a child custody and visitation modification motion, the requesting party must show the court that a significant change of circumstance has occurred since the previous court order. One popular ground for this request is that the other parent has become unfit in such a way as to render him or her an ineffective or inappropriate parent. As Tameka has alleged here, drug abuse is a common allegation that, if proved, may result in a change of custody.

Tameka is now requesting a modification in the current child support order. She alleges a "substantial change" in Usher's income since their divorce proceeding. First, in order to collect the unpaid child support, Tameka must be able to prove that Usher in fact had an obligation to pay that support and did not pay it. In San Diego, the Department of Child Support Services is an excellent resource for parents who wish to enforce a current order to collect unpaid support. However, custody and visitation are completely separate from child support orders. If Usher in fact is behind on support, Tameka must still allow him his court-ordered time with the children.

Please contact us if you have questions regarding custody and visitation and/or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child's birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child's biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child's father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother's husband is presumptively the child's father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child's birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother's husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

The marital and non-marital paternity presumptions can have harsh consequences regarding a father's parental rights. Considering that the husband of a child's mother is presumed to be the child's father and that in non-marital relationships a man must live with and hold a child out to be his own in order to be presumed the father, a child conceived out of an affair can create a devastating situation for the biological father. In a California family law case, Dawn D. v. Jerry K. (1998) 17 Cal.4th 932, this scenario became a reality. In this case, Dawn D. intended to divorce her husband when she began living with another man named Jerry K. Shortly after moving in with Jerry K. Dawn D. became pregnant. Just three months into her pregnancy, Dawn D. returned to her husband and rekindled their marriage. As a result of this case, the biological father, Jerry K. was unable to assert his parental rights to his child.

The paternity presumptions can have surprising consequences in terms of child support obligations as well. A presumed father is obligated to pay child support where support is ordered. If a presumed father makes child support payments for the child's minority and later learns he is not the biological father, he has no recourse for the 18 years of child support payments made. Further, if a presumed father conclusively proves through DNA testing that he is not the biological father of a child BUT has missed the two-year statute of limitations, he will be on the hook for child support payments for the remainder of the child's minority.

California family law cases operate under the best interest of the child standard. Most family court rulings attempt to further that interest as the paramount concern. Many argue that paternity presumptions are outdated, unnecessary and detrimental to the best interest of the child. Because science has advanced and paternity can be determined so accurately and efficiently, these advocates contend that DNA testing should be conducted in each paternity case in order to ensure the child's biological father is shouldered with the responsibilities and is able to enjoy his parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!

Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.

• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.

• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.

• If you say one thing in your declaration (such as, "I do not use drugs") and text something contrary to your spouse or a third party (such as, "I can't believe how stoned I was at the party"), you will ruin your credibility with the judge.

In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:

• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.

• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio's famous line from Shakespeare's Romeo and Julie), said "A pox on both your houses." When the other party blurted out, "She started it!" the judge replied, "Sir, two wrongs do not make a right - and your emails back to here were totally inappropriate, no matter who started it."

• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.

• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.

Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.

Continue reading "Texting Can have a BIG Impact on your Divorce Case" »

How do I collect unpaid or back child support in San Diego?

Times are tough already between the economy and normal monthly expenses stacking up. The last thing a custodial parent needs is to worry about obtaining and collecting child support. Attorneys in the San Diego area can help you obtain and collect unpaid or back child support that is owed to you.

Why do I need a Child Support Order?

If you are the primary custodial parent, you have a right to child support to help with your monthly expenses. The non-custodial parent is just as responsible for providing for the child(ren) as you are. Having an oral agreement for child support with the non-custodial parent is not good enough. You need to obtain an order from the court for the child support agreement to be enforceable. Without a court order the non-custodial parent has no legal obligation to pay child support to you even if you have agreed to terms for child support payments. If the co-parent stops paying the amount of child support you informally agreed to, then you will have little recourse if he or she stops making payments and you will not be able to collect arrears for the months they did not pay or only partially paid.

How do I file for child support?

Obtaining a court order is easier than it sounds and the state's enforcement tools (discussed below) often provide incentive for the non-custodial parent to pay child support.

If you were not married to the child's parent at the time the child was conceived, you will have to first file a Petition to Establish a Parental Relationship ("Petition") to establish paternity. You will need to provide your attorney, and the court, whatever information you have about the other parent's whereabouts and your relationship with that person. The Petition also allows the court to make child support orders once paternity is established.

If you were married when the child was born, paternity is presumed unless the other parent challenges paternity. However, you will have to file an Order to Show Cause to obtain child support. The court will determine a guideline amount based on both parent's income, timeshare with the children, and various other factors.

Continue reading "How do I collect unpaid or back child support in San Diego?" »

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.

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.

Continue reading "CAN I FIND OUT HOW MUCH MY EX SPOUSE CURRENTLY EARNS?" »

Massachusetts has passed a landmark law regarding alimony payments, The Wall Street Journal reports. The new law aims to end lifetime payments, particularly in retirement or once a former spouse finds a new partner.

Divorcing couples should know and understand the distinct differences between child support and alimony or spousal support in San Diego. Spousal support is generally treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer.

Child support may be more collectible than spousal support -- i.e. the court system may be more likely to enforce the court's orders. And, of course, as we reported this summer on our San Diego Divorce Attorneys Blog, cohabitation or remarriage generally does not impact child support payments in San Diego or elsewhere in California. That is not necessarily true of alimony or spousal support.

Spousal support can be awarded on a temporary or permanent basis. Temporary spousal support usually covers the period of time between separation and when a divorce ends. Permanent alimony is typically awarded based on the length of the marriage. A short-term marriage in California, one lasting less than 10 years, may result in an alimony award lasting up to half the length of the marriage. In long-term marriages, judges are given great discretion and payments may be awarded indefinitely.

Together with the initial property awarded to each spouse, the trifecta will go a long way toward determining your future quality of life.

As the Wall Street Journal reported, the recession has brought the contentious issue of long-term alimony to a boiling point. Statistics show unemployment has hit males the hardest. And, as the Baby Boomer generation hits the gates to retirement, many former husbands are looking to reduce or eliminate payments. The Tennessee Supreme Court recently ruled lifetime alimony was inappropriate if a woman was in good health, had a stable job and had received considerable assets during a division of property. And Florida recently set a higher bar for permanent spousal support awards.

The new law in Massachusetts takes effect next March. Those paying lifetime alimony can apply for modifications beginning in 2013. For women counting on these payments in retirement, a reversal could be financially devastating. The New York Times reports the Massachusetts law calls for alimony for up to half the length of a marriage lasting less than five years. For long-term marriages -- those lasting 15 to 20 years -- payments could last for up to 80 percent of the length of the marriage.

Your attorney needs to work toward a divorce agreement that adequately provides in all three areas: property division, spousal support and child support. The pros and cons of each award must be weighed with the client's financial future in mind.

Continue reading "Alimony, Child Support, Property Division, a Financial Trifecta in San Diego Divorces" »

The Associate Press is reporting that Los Angeles Dodgers owner Frank McCourt will keep paying $225,000 in temporary spousal support to his ex-wife, Jamie McCourt, over the next couple of months, but that money once used toward the mortgages of six luxurious homes will come from a $1.1 million escrow account funded by the sale of one of their other homes that was located near the Playboy Mansion.

When child and spousal support are at issue in a San Diego divorce, the issues can be resolved two way; either by agreement of the parties, or the court will make an order after having a hearing on the issue.

When parties reach a support agreement outside of a court hearing, either on their own or through their attorneys, the agreement is called a "Stipulation." To become effective, the terms of the Stipulation must be written down and filed with the court.

When an agreement regarding child support is reached, the written Stipulation that is filed with the court is required by the San Diego County Superior Court Rules to contain the following child support acknowledgments:

1. Each party is fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the child involved;
4. The needs of the child will be adequately met by the stipulated amount of support; and
5. The right to support has not been assigned to the county pursuant to section 11477 of the Welfare and Institutions Code and no public assistance application is pending.

Further, in San Diego County, all written stipulations for the payment of child support must also include the following mandatory language:

"The parties declare all of the following:
1. They are fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the children involved;
4. The needs of the children will be adequately met by the stipulated amount; and
5. The right to support has not been assigned to any county pursuant to section 11477 of the Welfare and Institutions Code and/or Family Code section 17404, and no public assistance application is pending."

In addition to the mandatory acknowledgements and language, the following forms are required to be included with all child support orders (which include Stipulations):

1. A Child Support Case Registry Form must be properly filled out and included with all child support orders issued or modified pursuant to Family Code section 4014; and
2. A Notice of Rights and Responsibilities must be attached to all orders and judgments which include provisions for child support pursuant to Family Code sections 4062 and 4063.

The experienced San Diego Family Law Attorneys at the Law Offices of Nancy J. Bickford are very familiar with all of the requirements of the California Family Code and the San Diego Country Superior Court Rules that must be followed whenever an agreement is reached to make sure the terms of the agreement are enforceable.

In cases in which a stipulation cannot be reached, we will vigorously argue your case at a hearing or trial.

If you are considering a divorce, the most important first step is to consult with an experienced San Diego Family Law Attorney. Call 858-793-8884 in Del Mar, Carmel Valley, North County, La Jolla or San Diego to schedule an appointment with Nancy J. Bickford.