The California Family Code allows courts to issue orders removing a spouse from a home. These are commonly referred to as “kick out” orders or “exclusive use and possession” orders. Certain circumstances compel a court to make these kinds of orders. This blog post will discuss these circumstances. It turns out that the threshold required for a kick-out order differs depending on whether or not the application to the Court is brought in an ex parte (i.e. emergency basis) or if it is brought pursuant to a noticed motion.
We have written several blogs about the date of separation and its importance to a dissolution action. In some cases, the date of separation can be the most critical issue in a case. The reason is the date of separation can be a significant factor in determining how long spousal support will last , or whether a particular piece of property is separate or community. If you Google “date of separation,” your web browser will retrieve dozens, if not hundreds, of articles on this topic.
The question of a party’s income available for support has been the scourge of many attorneys and forensic accountants for a long time. It is a difficult and evolving issue, with new cases coming out honing and refining the interpretation of Family Code section 4058. Below, we take a look at a few common topics that are raised in child and spousal support cases.
If one party gets a seven figure inheritance from Great Aunt Birgit, is that income available for support? This was the question raised in County of Kern v. Castle. The Court determined that inheritances are not income available for the purposes of child support. Continue reading
Steve Levitan, the creator of the hugely successful sitcom ‘Modern Family,” is in the middle of a rather nasty divorce from his estranged wife Krista. Krista has filed two unsuccessful requests for a Domestic Violence Restraining Order and the divorce has been anything but inconspicuous. The most recent incident was a scathing email Steve sent to Krista allegedly telling her if she didn’t back off he would initiate World War III. That email is allegedly sitting on a Judge’s desk right now. There is no way to know whether there is any truth to this allegation or what the email said exactly, but even if the story is half-true, that is not the type of email you want the Judge who will decide you case reading.
Getting divorced is an emotional and difficult experience even in the most congenial of cases. It is no surprise then that in the heat of the moment parties often send emails or text messages to the other party they later regret. More often than not the messages are filled with anger, frustration, and hatred – sometime deserved. The reason this is such a problem nowadays is sending emails and text messages are so quick and convenient. Before you have had a chance consider what you want to say and whether it needs to be said at all, you have hit the send button and the message is on sitting in someone’s inbox. This situation is exacerbated only by the ease with which we can send emails and text messages through our smartphones. Right now, without picking up my phone, I could send a friend an email I dictated to Siri.
You’ve just had a hearing at the trial level and you lost. You think the judge really botched the law and you want a chance to let a three justice appellate panel review the order. In this case, you would definitely file an appeal, right?
Not always! In many instances, you could actually be required to file a request for writ relief and you could lose an otherwise winnable case if you were required to do so and did not! So when do you file a writ and when do you file an appeal?
First, let us address the practical differences between an appeal and a writ. Think of appeals as non-emergency cases and writs as emergency cases. Appeals can take a long time because the appellate courts are so busy. In California a party can reasonably expect the appellate court to rule on the appeal in about one year from the date the notice of appeal is filed. Also, in California, the judges are required to issue a written opinion in every case explaining their reasoning for either affirming or reversing the judgment. This is one reason why appeals take so long.
The first in a series of presidential debates will have just taken place when the blog posts. We do not know how each party fared in the first debate, but there is one thing we can be sure of; the last several weeks were spent preparing the candidates for the debate. Whether it is reviewing materials, fielding test questions, or preparing to respond to attacks from the other side, you can be sure each candidate is working tirelessly with experts in the debate process to ensure they make a good impression. So what does this have to do with Family Court Services (often called “FCS”)? The answer is everything.
As we have discussed many times, before a court can make a ruling on child custody and visitation, the parties must participate in custody mediation with FCS. At the mediation, FCS will attempt to get the parties to come to an agreement about what the visitation schedule will look like for the children. If they are unable to come to an agreement, the mediator will issue a recommendation for the Judge. As you can imagine, these recommendations are given a lot of deference.
The conventional wisdom is that once a child turns 18, child support ends. While this is certainly true in many, if not most, cases, there are actually many instances in which child support is ordered after a child reaches the age of 18. In this post, we will discuss three of these instances: the 18-year-old high school student, agreements to provide support beyond the 18th year, and the adult disabled child.
The 18-year-old high school student
If a child reaches the age of 18, but is still in high school, the chances are that the support order will not terminate upon the child reaching the age of 18. Family Code section 3901 provides that child support continues to be payable “as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.” Under this statute, if the 18-year-old drops out of school, child support would end immediately.
Family Code section 2122 allows a party to set aside a judgment because of fraud, perjury, and simple failure to disclose. An example of fraud would be telling a party they don’t have to participate in the proceedings while promising to be fair, but then proceeding to railroad them at a default proceeding. An example of perjury would be lying on the disclosure forms. Finally, an example of failure to disclose would be simply leaving out a material fact or record related to the value of a community asset.
However, pursuant to the public policy of California regarding the finality of judgments, there are time limits to when a party can move to set aside a judgment on the grounds of fraud, perjury, and failure to disclose. Family Code section 2122 provides that a party must bring their motion to set aside within one year of the date they knew, or should have known, the facts constituting the fraud, perjury, and failure to disclose.
When should a spouse have known a fraud, perjury, or failure to disclose? The answer to that question is actually quite complicated and is only made clear through the review of case law.
This is a question that comes up a lot in family law. Sometimes a party wants to record another party making a threat or acting violently. Other times, one spouse wants to secretly record a devastating admission of his or her spouse. This type of evidence can really bolster a case, as long as it’s admissible.
The lead statute on this issue is California Penal Code section 632. This statute holds that anyone who “records [a] confidential communication” “intentionally and without the consent of all parties to the confidential communication,” is guilty of a crime. Accordingly, California is considered a “two-party” consent state. That means that all parties to any confidential communication must agree to the recording. This is different than say, Georgia. In Georgia, anyone can record a phone call without the consent or even the knowledge of any other party to the phone call.
Vaccination proponents and those who are against mandatory vaccinations (often called “anti-vaxxers”) have been all over the news. Celebrities and politicians have come out on both sides of the issue, making the debate very highly contested. For the most part, the issue of whether or not to vaccinate children was largely a philosophical discussion. This was especially true in child custody cases where parties shared joint legal custody. Typically, one parent would want to have a child vaccinated and another parent would not. The reasons for not wanting the vaccination could be medical, religious, or part of a philosophical objection often referred to as a personal belief exception.
This often left the court in the difficult spot of deciding whether the or not to order the vaccinations. In these cases, the child’s doctor might recommend the vaccination, but if the objection was religious or philosophical how was the court to decide?