Posts Tagged ‘El Segundo Divorce Lawyer’

California Divorce Blog–Attorney Fee Awards in California Courts

April 25, 2013

The California Family Code provides for attorney fee awards in family law matters. I am often asked whether the opposing party can be made to pay for attorney fees and costs. The answer to this question is “it depends” on the facts in your case.  I will discuss the two most commonly used sections to award attorney fees.

There are two discrete statutory sources of authority for fees and costs awards in dissolution, legal separation and nullity actions: First, there are Need Based Attorney Fees.  Pursuant to Fam.C. §§ 2030 and 2032, the court is empowered to order the payment of fees and costs as between the parties, based on their “relative circumstances” (i.e., respective incomes and needs and abilities to pay) in order to ensure a parity of legal representation in the action.  Alternatively, or in addition to a need-based award (above), Fam.C. § 271provides the court with a powerful weapon to curb obstreperous conduct in family law proceedings by assessing fees and costs as a sanction. 

Whether need-based or as a sanction, Family Code fees and costs may be awarded by the judgment and/or at any time during pendency of the action or for postjudgment appellate, modification or enforcement proceedings. [Fam.C. § 2030; seeMarriage of Green (1992) 6 CA4th 584, 593, 7 CR2d 872, 876–877; Bidna v. Rosen (1993) 19 CA4th 27, 38, 23 CR2d 251, 258; see also Marriage of Askmo (2000) 85 CA4th 1032, 1038–1039, 102 CR2d 662, 666—pendente lite need-based attorney fees awardable to W while her default was in effect and pending H's appeal from order granting W relief from default judgment.

Indeed, in circumstances demonstrating a disparity in the parties' “access” to and ability to pay for legal representation, a need-based fees and costs award to “level the playing field” early in the proceedings is virtually mandatory. [Fam.C. § 2030(a)(1) & (2);Marriage of Tharp (2010) 188 CA4th 1295, 1315–1316, 116 CR3d 375, 391–392—given disparity in parties' ability to pay for legal representation, error to deny W requested attorney fees award until conclusion of case]
A Fam.C. § 2030(a) “related thereto” fees and costs award is need-based. However, courts entertaining Family Code proceedings are also empowered to assess fees and costs as a sanction against a party whose uncooperative conduct frustrates the policy of the law to promote settlement and reduce litigation costs (Fam.C. § 271).In many cases, § 271 sanctions will be an effective alternative to a § 2030 “related thereto” need-based award. Indeed, Fam.C. § 271 may render it unnecessary to resort to § 2030(a) to recover fees and costs for a “related” action:

“Under the factual circumstances of the instant case, the findings of the trial court would clearly support an award of attorney fees and costs as a sanction under [Fam.C. § 271]alone, since [Husband] violated the public policy in family law cases to promote settlement and reduce the costs of litigation by encouraging cooperation between attorneys and parties.” [Marriage of Green (1992) 6 CA4th 584, 592, 7 CR2d 872, 876(brackets added)—award against H for W's fees and costs incurred in defending against nonmarital actions upheld both under § 2030 “related thereto” provision and pursuant to§ 271 sanction authority; see also Neal v. Super.Ct. (Neal) (2001) 90 CA4th 22, 26–27, 108 CR2d 262, 265–266—fees award against H (for dragging W “through this unnecessary excursion in the civil court”) under authority of both Askew (“related thereto” fees award based on civil action “duplicative of the family law action,”) andFam.C. § 271; Burkle v. Burkle (2006) 144 CA4th 387, 393, 50 CR3d 436, 440(sanctions)]
Depending on the facts and egregiousness of the conduct in question, seeking a § 271 sanction award may be tactically advantageous because it could yield agreater recovery than one based upon need and ability to pay. [Marriage of Green, supra, 6 CA4th at 592, 7 CR2d at 876]

Nonetheless, “cautious counsel” moving in a family law action for an award of fees and costs incurred in a “related” proceeding may choose to proceed under both § 2030 and § 271 … “since it may be difficult to predict in advance which section the court will rely upon if it grants the motion.” [Marriage of Green, supra]
Please note, Attorney Fees are not awardable to Self Represented Litigants.  
Amount of need-based award: In determining the amount of a § 2030 need-based fees and costs award, trial courts must apply the same statutory standards governing the threshold decisionwhether to make the award—i.e., the court must consider what is “just and reasonable” under the parties’ “relative circumstances” and must base its determination on the parties’ respective incomes and needs, and “any factors affecting” their respective abilities. [Fam.C. §§ 2030(a)(2),2032(a)]
As applied to the specific facts of each case, the primary focus is on what is “reasonably necessary” to adequately maintain or defend the proceeding. [Fam.C. §§ 2030(a)(1), 2032(b);Marriage of Marsden (1982) 130 CA3d 426, 446, 181 CR 910, 921; see Marriage of Keech(1999) 75 CA4th 860, 870, 89 CR2d 525, 532—abuse of discretion to order H to pay W's attorney fees without making any inquiry into reasonableness of the fees; Marriage of Dick(1993) 15 CA4th 144, 167, 18 CR2d 743, 756]
Relevant factors: Relative need and ability to pay are not the exclusive considerations in fixing the amount of a “just and reasonable” fee award. In determining a “reasonable” fee award, trial courts should also take into account such matters as the:

• nature and complexity of the litigation;
• amount involved;
• skill required and employed in handling the litigation;
• attention given;
• success of counsel’s efforts;
• the respective attorneys’ professional standing and reputation;
• intricacies and importance of the litigation;
• labor and necessity for skilled legal training and ability in trying the case;
• litigation costs already incurred and expected to be incurred through conclusion of the case; and

At conclusion of client’s case in chief: Request for a need-based attorney fees and costs award should be made upon conclusion of the client’s case in chief and before counsel rests. Supporting evidence will usually be taken at that point and the matter decided along with all other issues in the case.

Statement of decision: It behooves counsel to request a statement of decision on the underlying evidence used to compute a reasonable fees and/or costs award. Failure to request a statement of decision on the issue waives the right to the relevant computations; and an award of reasonable amounts will be upheld on appeal under the doctrine of implied findings (see Chs. 15 & 16). [Marriage of Ananeh–Firempong (1990) 219 CA3d 272, 280, 268 CR 83, 87; Marriage of McQuoid (1991) 9 CA4th 1353, 1361, 12 CR2d 737, 740]

It is important that you consult with your attorney regarding the possibility of attorney fee awards (either in your favor or against you) in your case. You may be ordered to pay attorney fees either because of your financial circumstances or because of your sanctionable conduct.

If you have questions regarding possible attorney fee awards in your Family Law case please contact Attorney Keith F. Simpson today at (310) 297-9090 or visit his website at http://www.simpsonlaw.net to set an appointment to discuss your legal matter.

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California Divorce Blog–Divorce With Children

January 1, 2013

I often experience a rise in inquiries about divorce and child custody every January after the holidays.  If you are considering divorce I find that it is best to communicate with your children.  It is best to consult with a psychologist about how to approach this situation with children.  Children need stability and the divorce process can be very unsettling for children. Therefore, the following may be helpful.

1. If possible, tell the children together in private that the two of you will be getting a divorce. Obviously, certain situations will not permit this to occur. For example, if there is domestic violence in your relationship.

2. Make sure you tell the children that it is not their fault. Children often tend to blame themselves for the failure of your marriage or relationship. It is important to tell your children that you both will always love them.  Your children should feel like they are loved by both of you during the divorce process.

3. Do not alienate the other parent from the children. The children should not be forced to “choose sides” or agree with your reason for your divorce.

4. You should Co-Parent with the other parent. Even though the two of you have differences, it is extremely important to ignore your differences when dealing with your children and the other parent.

5. Add Structure to your child’s schedule. Divorce often causes your children to feel insecure.  Therefore, it is very important to have structure so your child will feel as secure as possible when going through a divorce. This means that a structured custody schedule is important to a child.  You do not want your child to feel as though he or she is constantly living out of a suitcase.

Obviously, these are general guidelines which may not apply to your situation. It is best to consult a professional psychologist or Marriage Family Therapist to further discuss.  I hope this helps some families with children who are experiencing divorce.  For any questions regarding your divorce please call Attorney Keith F. Simpson at (310) 297-9090 or visit http://www.simpsonlaw.net.

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California Divorce Blog–How to approach Divorce and the Holidays

December 25, 2012

The holidays are supposed to be a cheerful time but for many people who have a pending divorce or are newly divorced, the holidays can cause increased stress, anxiety and/or depression. People tend to focus on their family holiday traditions which can make people become further depressed. Here are some tips to help you through the holiday season.

1. Donate your time to a charity to give back and help others in need. This will also allow you to start a new holiday tradition which is beneficial to you and those benefiting from your service.

2. Reach out to friends or family for support. This is especially important for people who do not like to be alone during the holidays.

3. Start new holiday traditions.  This can be as simple as eating out at a restaurant, going to a movie or going outdoors for an excursion.

4. Co-parent with your ex-spouse.  Try to make an extra effort to co-parent so your children feel loved and cherished by both parents. It is very important to not say anything negative about the other parent in front of your children. Doing so will only add to your child’s holiday stress level.

5. If you and your ex-spouse are not speaking then remember that it is extremely important that both of you follow the court order regarding child custodial pick up and drop off.  Failure to do so will only add to everyone’s stress level.

I hope this helps families during the holiday season.  Please call Attorney Keith F. Simpson if you have any questions regarding divorce at (310) 297-9090 or visit his website at http://www.simpsonlaw.net.

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California Divorce Blog–Spousal Support

May 31, 2012

Spousal Support Also Known as Alimony:

Spousal support or alimony is the term used for payments from one spouse to another after a divorce for the purpose of maintaining the former spouse at a standard of living similar to that enjoyed during the marriage. You may be more familiar with the word “alimony” which is the same as “spousal support”. Spousal support laws seek to prevent a divorced spouse from suffering from a decrease her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.  Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources for that spouse to met her own needs.  Throughout these questions and answers the words “spousal support” and “alimony,” are used interchangeably

  Concerns About Spousal Support:

Spousal support can be a tremendous strain on your finances. It is a highly litigated issue because of the possible future expense you may owe your spouse.

Use of DissoMaster Program by Court:

While the court may use a computer program or guideline to calculate a temporary spousal support amount pending trial in the matter, the court is not allowed to use the DissoMaster in calculating permemenent support.  In re Marriage of Olson (1993) 14 Cal.App.4th 1 (Permanent spousal support order based on DissoMaster reversed for failure to consider all 4320 factors).

The Court’s View of a Cheating Spouse:

California is considered a no-fault jurisdiction.  Accordingly, the court will not consider your spouse’s infidelity in determining spousal support.  However, if your spouse is cohabitating (living under the same roof with a spouse of the opposite sex in a romantic relationship) the court must presume that she has decreased need for spousal support.

Attorney Fees and Costs:

Not necessarily!  It’s always a good idea to try to negotiate an out of court settlement to save legal fees, but often there are significant advantages to actually litigating spousal support.  In many cases if you reach an out of court settlement the spousal support order is indefinite in nature—it continues on forever.  Also oftentimes such out of court settlements do not establish the “marital standard of living” an exact dollar amount that is necessary for your spouse to have in order for them to continue to maintain the “marital standard of living.”   If you don’t have such a finding regarding the dollar amount necessary to satisfy the standard of living it will be very hard to come back in the future and seek to modify or terminate the spousal support.  Oftentimes such settlements don’t take into account your spouse’s earning capacity as established by the testimony of a licensed vocational counselor.  And often there is no “Gavron Warning”.  If you look at this issue as a long-term obligation that can span several decades, then you may have a significant advantage in litigating alimony to ensure that you have set the case up correctly for eventual termination of spousal support.  All to often the paying spouse is in a hurry to get their divorce over with at all costs, and does not consider the long-term implications of paying spousal support for 10-20 or more years into the future with no relief in site.  Litigation often offers tremendous advantages in resolving spousal support in your favor.

Relevance of a Long Term Marriage (In Excess of 10 Years):

In California marriages of 10 years or more are considered marriages of long duration, and as such the court is not allowed to set a definite termination date for spousal support at the time of trial.  Many people and attorneys misinterpret this rule to mean that California has lifetime spousal support in marriages of long duration.  This is clearly NOT the case as is proven by the citation below:

As recognized by our Supreme Court the public policy of this state has progressed from one which “entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to postdissolution support for only so long as is necessary to become self-supporting.”

In re Marriage of Schmir (2005)  134 CA4 432.  Also note that while the court can not terminate spousal support by a certain date, they are still allowed to provide that spousal support will terminate by a certain date unless the supported spouse makes application to extend the support on or before that date.  In marriages that are just over the 10 years, or where the spouse has excellent career prospects, this is often a fruitful strategy to pursue.  In marriages of less than ten years spousal support is presumed to no longer than for half the length of the marriage.

Effect of Retirement on Spousal Support:

Under a recent case called In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373  you are entitled to retire at age sixty five and can not be required to work to support your spouse beyond that age.  Arguably if you are forced into early retirement you may be able to convince the court that you should not have to continue to pay support.

Effect of Raise on Spousal Support:

No.  Under a case called Hoffmeister II the court can not consider your increased post-seperation earnings as a  basis for awarding support beyond that which is justified by the marital standard of living.

Effect of Reduced Income on Spousal Support:

YES. If you have been involuntarily terminated, or had your income reduced, you should be able to receive a temporary abatement of support.  And in many cases, if you are unable to obtain comparable employment, and have to take a pay cut, you may be able to receive a permanent spousal support reduction or even termination.

Effect of Self Employment on Spousal Support:

YES.  If your business has been effected by the recession and you are earning less you should be able to lower your spousal support obligation.

Effect of Bonus Income on Spousal Support:

These kind of orders are known as “Smith-Ostler” orders and are very problematic in the area of spousal support.  First, unless there is an annual cap these orders may end up providing your former spouse with way more spousal support than is consistent with the marital standard of living.  Second, these orders are difficult to enforce and calculate.  While there are some circumstances where these type of orders are necessary, they are not beneficial to the spouse that is paying spousal support.

Effect of Unemployed Spouse on Spousal Support:

Well you can’t force them to get a job, but you can obtain a vocational assessment and if they have not sought employment within a reasonable period of time you can have the court consider lowering or terminating their support.  They can also be “imputed” income, e.g. the court can assign them with fictional income if you can prove that they are purposefully avoiding employment and that there are positions available consistent with their abilities.

My spouse claims to be disabled?  Is there anything I can do about this?

Yes.  Oftentimes I see very non-specific claims of disability for “stress” or “depression” and the former wife claims she can not return to the workforce due to these types of conditions.  In other cases there may be a valid disability but the disability that may impact certain types of employment, but there may be other fields that are available.  For instance, someone who has a back injury may not be able to lift heavy boxes but may be able to work at a computer terminal.  In many cases I recommend that we obtain an Independent Medical Evaluation regarding the spouse’s medical condition to see what limitations exist, if any.  And once the Independent Medical Evaluation is completed we then retain a licensed vocational counselor to make recommendations as to what type of employment is available taking these limitations into consideration.

Will the division of assets have an effect on support?

YES.  If your spouse is awarded significant assets, or if you make significant equalization payments over time, this should be considered as a mitigating factor against spousal support.

Can I avoid paying support by declaring bankruptcy?

Spousal support obligations are generally non-dischargeable in bankruptcy.  Filing bankruptcy will not help you avoid spousal support.

Will I get any relief from support through taxes?

Spousal support payments are generally tax deductible to the payor and taxable to the recipient.

My ex-spouse has started living with her new lover. Can I use this to reduce or end support?

YES.  This situation is known as cohabitation and is generally a good reason to significantly lower if not totally eliminate spousal support obligations.

My ex-spouse is getting married again. Does this mean I can finally stop paying support?

YES.  Your obligation to pay spousal support ends upon her remarriage.  You may need to obtain an order terminating a wage assignment if there is a wage-assignment in place.

If you have any questions regarding your California divorce matter please contact attorney Keith F. Simpson in Manhattan Beach, California at (310) 297-9090 to discuss your matter today.

http://www.simpsonlaw.net

http://www.caldivorce.net

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California Divorce Blog–Valid Marriage in California

December 7, 2011

I often am asked what constitutes a valid California marriage.  Does California recognize a “Common law marriage”?  The answer is no.  California does not provide for a common law marriage.  It does not matter how long a couple have been together in a committed relationship.  If you have not married your partner then you are not married pursuant to California law.

Elements of valid marriage

In general—consent, license, solemnization, authentication: A valid marriage under California law requires the consent of the parties to that civil contract. [Fam.C. § 300(a)] But the parties’ consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license (Fam.C. § 350 et seq.), solemnization (Fam.C. § 400 et seq.) and authentication (Fam.C. §§ 422–425); and the authenticated marriage license “shall be returned to the county recorder of the county where the marriage license was issued.” [Fam.C. §§ 300, 306; see also Fam.C. §§ 359, 360; Lockyer v. City & County of San Francisco (2004) 33 C4th 1055, 1075, 17 CR3d 225, 235–236; Estate of DePasse (2002) 97 CA4th 92, 101, 118 CR2d 143, 150]

What if you are married outside of California (or in a foreign country)?  The answer is that the marriage is valid so long as the marriage complied with all legal requirements of the jurisdiction where you married.  Typically, this means that you obtained a valid marriage license, the marriage was consensual and was authorized pursuant to law.

If the marriage is not a valid marriage then the marriage may be void or voidable (depending on the situation).  Therefore, it is extremely important when considering a divorce to first consider whether your marriage is a valid marriage under California law. If it is not a valid marriage then you may not have to file a divorce lawsuit.

If you have any questions regarding your California divorce matter please contact attorney Keith F. Simpson in Manhattan Beach, California at (310) 297-9090 to discuss your matter today.

http://www.simpsonlaw.net

http://www.caldivorce.net

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California Divorce Blog (Spousal Support Options)

September 18, 2010

Recently it seems that many of my cases involve Spousal Support (formerly known as “alimony”). In fact, many cases seem to hinge on the issue of spousal support. I mean that all other issues can be resolved with the exception of spousal support. Spousal support can be, and often is, an emotional issue. Think about it. One spouse is faced with the prospect of breaking up a “lifetime partnership” with the other spouse but may be on the hook for paying spousal support for Life! This can often be difficult to imagine but a reality nonetheless.

So what is spousal support? Spousal support is a court order for one spouse to pay any amount necessary for the financial support of the other spouse (See California Family Code Section 4320). The Court may make temporary spousal support orders from the time the Divorce lawsuit is filed. At time of trial the Court may make permanent (lifetime) spousal support orders. This means that one spouse may be ordered to pay the other spouse support for the remainder of his or her life! There are many factors which the Court will consider when determining the amount of spousal support and the duration. A rule of thumb is the longer the marriage, the more likely the Court will order lifetime spousal support. Any marriage with a duration of ten years has been held to be a “long term marriage” and therefore makes is more likely that a court may order lifetime spousal support.

There are many methods to resolve the issue of spousal support. Typically, the spouse who is the higher income earner will be the spouse who is ordered to pay spousal support. Some options for resolving spousal support are as follows: 1) Agree upon a monthly spousal support amount for the remainder of the supported spouse’s life (or until the supported person remarries or the paying spouse dies). 2) Agree upon a monthly spousal support amount for a defined period (i.e., pay spousal support for five years). 3) Pay a one time lump sum spousal support payment. This option can be a double edged sword and may be a gamble. For the paying spouse, the gamble is that they are betting that by paying a one time lump sum payment the total sum will be less than if they paid a monthly amount for life. If the supported spouse immediately remarries or passes away then the paying spouse will have vastly overpaid the amount of spousal support necessary. The same is true of the supported spouse (i.e., the risk of taking a one time lump sum payment as opposed to spreading monthly payments over a lifetime period). Who knows how long both spouses will live. What is the condition of their health? Does the supported spouse want to remarry in the near future? These are all questions which parties and their counsel should consider when evaluating the tricky and emotional issue of spousal support.

If you are facing difficult decisions regarding spousal support please call Attorney Keith F. Simpson today to discuss at (310) 297-9090. Thank you for reading my California Family Law Blog!

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California Divorce Blog (Divorce Options)

September 17, 2010

Welcome to the first blog posting from attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation.  Today I am going to write about options available to a person who has decided to file for divorce (also known as marital dissolution).

In California, a person has the option of filing a petition with the Superior Court of California for 1) Marital Dissolution (Divorce) 2) Legal Separation or 3) Nullity.

In California, a person may obtain a judgment of Marital Dissolution or Legal Separation on the following grounds: (a) Irreconcilable differences that have caused the irremediable breakdown of the marriage; or (b) incurable insanity.  The vast majority of parties filing for divorce choose the former “Irreconcilable differences” as the alleged reason for filing for a judgment of Marital Dissolution.  The Court typically makes a finding to the effect that the Irreconcilable differences have led to the “irremediable” breakdown of the marriage.  In my experience Courts tend to liberally construe the term “irremediable” breakdown of the marriage and order a judgment of Marital Dissolution so long as it appears that their is no possibility of reconciliation.

You should be aware that California has a residency requirement which must be satisfied prior to a Court entering a judgment for marital dissolution.  At least one party must have been a resident in the State of California for six months and a resident in the County where the lawsuit was filed for at least three months prior to the Petition being filed with the Court.  In the event neither party can satisfy this residency requirement, the parties may file for a Legal Separation and later (presumably six months) amend the Petition to a filing for Divorce. This will allow a couple who recently moved to California to proceed with filing the lawsuit and obtaining a Divorce Judgment as soon as possible (6 months).

A Legal Separation, unlike Divorce, does require the consent of both parties (unless the respondent does not appear and a default is entered against the respondent).  Also, a judgment of Legal Separation does not terminate the parties’ marital status.  This will allow a spouse to remain on the other spouse’s health care insurance plan.  If a party obtains a Divorce, the other spouse is precluded from remaining on the other spouse’s health care plan. This is a very important consideration which all parties should consider prior to requesting judgment for Divorce.

Nullity is a completely different concept.  A judgment of Nullity may only be granted by a Court when a marriage is void or voidable for the following reasons: (a) incest (b) bigamy (c) a spouse was not an adult when married (d) spouse was erroneously thought to be deceased (e) fraud (f) unsound mind (g) force (h) physical incapacity.  There is no statutory residency requirement to file a petition for a Judgment of Nullity.  There is also no consent requirement between the parties.  Finally, a Judgment of Nullity acts to nullify the marriage (as if the marriage never occurred).

Thank you for reading my first blog entry.  Please do not hesitate to contact Attorney Keith F. Simpson to further discuss any family law questions you may have at (310) 297-9090. Please also view our website at http://www.simpsonlaw.net or http://www.califdivorce.info

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