In family law we spend a good deal of time talking about court orders. There are orders for child support, orders for spousal support, custody orders, and orders for the payment of attorney fees. Getting more specific, all of the aforementioned orders can either be interim orders (also called temporary orders) or they can be final orders. The point of this blog is to discuss court orders in a family law context and to provide some basic understanding of how, why, and when they are made. This is only a basic discussion of orders, a topic that can be very complex. For this reason, you should speak with a qualified family law attorney about your specific case so you can be certain you fully understand your rights. Continue reading
Last year, we wrote a blog post on the blockbuster case of Marriage of Davis issued by the California Supreme Court. In that case, the Court resolved a split among the lower courts and held that it was impossible for spouses to be separated unless they were physically living separate and apart. The date of separation can be the most important issue in a given case. The date of separation determines the duration of spousal support and it determines the end of the community and the end of the creation of new community property.
The title of this blog – for our younger readers – comes from the Kenny Roger’s song, “The Gambler” which feels appropriate when discussing a family law case. Parties gamble on the strength of their position, the strength of their legal theories and evidence, and the likelihood they can convince a judge to accept their story. There is always the other side to that gamble; namely the other party. They are also gambling. Family law is not always a zero-sum game, but there are many issues that are either a “yes” or a “no.” So when you litigate a case, you may spend a great deal of time and money only to come out on the other end empty handed.
Good gamblers know to always hedge their bet. Hedging is the act of protecting yourself from loss by reducing the risk. Hedging a bet comes at a cost though. You may reduce your risk of loss, but you also reduce your recovery. In family law, you reduce risk by negotiating a settlement. There are many ways parties can reach a settlement of their case, but the following three scenarios represent the most common avenues. Continue reading
You probably didn’t need to come to this web site to know that California has laws compelling parents to financially support their children. The reasons for this are obvious. When parents make the decision to procreate, they are financially responsible for that decision. I think we can all agree that the taxpayers shouldn’t have to foot the bill to support a child when one or both of that child’s parents can do so themselves. It should be no surprise then, that Family Code section 4053 holds that “a parent’s first and principal obligation is to support his or her minor children acceding to the parent’s circumstances and station in life” and that the “financial needs of the children should be met through private financial resources as much as possible.”
Did you know, however, that there is such thing as “parent support” in California too?
Consanguinity comes from a Latin word “consanguinitas” and meaning “blood relation.” In English is just means your blood relatives. That would be your mother or father or your children. There is also what is referred to as “affinity” which in layman’s terms it is the property of being from the same kinship as another person. That is your relatives that are not a blood relation. Your spouse, your in-laws, your aunt or uncle by marriage are all examples of non-blood relations. In even simpler terms, they both refer to your relatives.
In family law consanguinity and affinity are very important terms when it comes to Domestic Violence Restraining Orders (“DVRO”). Under California law, in order to obtain a domestic violence the party seeking protection and the party to be restrained must 1) be married or formerly married, 2) in a current or past dating relationship, 3) be current or former cohabitants, 4) be the parents of a child or the child themselves, or 5) be any “other person related by consanguinity or affinity within the second degree.” Family Code §6211.
It was recently reported that actor Jeremy Renner (best known for his lead in 2008’s The Hurt Locker and as Hawkeye in the Avengers movies) is refusing to pay his half of their daughter Ava’s preschool tuition. Jeremy’s ex-wife, Sonnie Pacheco claims that she has asked for Jeremy to pay half of the $1,600 monthly tuition, but he has refused. She also claims he has fallen behind on his child support payments to the tune of $48,367. Now I have to admit I have never read Jeremy’s court orders, but I have a really good guess what order is he running afoul of.
In California, it is mandatory for the Court, when making child support orders, to allocate the costs related to the children’s uninsured medical expenses (e.g. co-pays, deductibles) and for the cost of child care so that a parent can work or go to school/training. These are referred to as “mandatory add-ons” since the court is required to make them part of all child support orders. Typically the cost of these expenses is split equally between the parents, but the court has discretion to allocate the cost however is most appropriate in light of the parties income and expenses. So for example in Jeremy’s case above, if the court ordered that Jeremy and Sonnie were to split the cost of their daughter’s pre-school, then Jeremy would owe half of the $1,600 tuition or $800 each month.
As much as Johnny Depp has tried to keep the happenings of his divorce from Amber Heard under wraps, the media continues to report as their story unfolds. The latest headlines from Johnny and Amber’s divorce indicate that the parties have each set depositions of the other, which may or may not be postponed. Regarding the depositions, each of their attorneys have made varying allegations about the other party. It appears that although Amber showed up for a previously scheduled deposition date, Johnny’s attorneys were unable to take testimony from her because she was in the next room room crying, pacing, screaming, yelling, and laughing the entire time. Of course Amber’s lawyers say that this is completely false. Amber’s “people” also stated that it’s “highly unlikely that Johnny will appear and cooperate” for his upcoming deposition.
It is unlikely that when you think of the divorce process, you associate it with the taking of depositions. That is because depositions may not be as widely used in family as they are in other areas of law, but even so, depositions can be a valuable resource in a contested divorce matter. The following are some facts regarding depositions as they relate to divorce proceedings.
In Family Law, tracing is the method by which a party proves that funds in a particular account are, or were, used to acquire separate property. Family Code section 760 holds that all property acquired during a marriage, regardless of source, is community property, it can sometimes be a difficult and expensive endeavor to try to perform a tracing. In California Family Law, there are three ways to prove a tracing: 1) Direct Tracing; 2) Exhaustion 3) Total Marital Recapitulation.
California Family Code section 1612 lays out what can and cannot be included in a premarital agreement. The most important issues in just about any premarital agreement are the property rights of the parties and whether or not there are any limitations on spousal support.
Yes and no. Many times, if a party is just trying to protect what they already have or protect the separate character of a future inheritance, a premarital agreement may not be necessary. This is because even without a premarital agreement, property acquired prior to the marriage is the separate property of the acquiring spouse. Property acquired by inheritance or by gift is also separate property, even if it is acquired during the marriage. There are still some pitfalls to be wary of here.
There are so many reasons a client wants to remain in the family home after the divorce proceedings have been filed. Often it is a custodial parent who wants to provide normalcy for their children. Other times it is for financial or emotional reasons, or a combination of the three. Whatever the reason, unless one party agrees to move out of the residence, a court order will be required to exclude a party from living in the family residence.
Deciding who will remain in the residence at the beginning of a case is a problem nearly every family law litigant will face; requiring the assistance of the court in reaching that decision is far less common. In most cases, one or both parties will decide to leave the family residence. In these situations it is important to have a written agreement about who is leaving, who is staying, and how the expenses related to the residence are going to be paid. These agreements are where most of the controversy lies, especially with regard to the payment of the expenses. That is an issue that should be addressed in a separate blog.