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California Divorce Blog–Child Support

February 15, 2011

In California Child Support is money paid from one parent to the other parent to assist with the expenses associated with child rearing.  The California Family Code refers to child support as a support obligation owing on behalf of a child.  (California Family Code Section 17402)  Generally speaking, California law required both parents to support their minor children “in the manner suitable to the child’s circumstances.” (California Family Code Section 3900)

All minor children of the parents are owed a duty of child support.  The obligation to support a child is not limited to the parents’ marital status nor is it limited to biological offspring!  (California Family Code Section 7602; White v. Marciano (1987) 190 CA3d 1026, 1031, 235 CR 779, 782)

Once the issue of parentage is determined, the court will move to decide the issue of child support.  A finding of parentage occurs when the court makes a finding as to who are the child’s legal parents.  In California, courts will use a program called Dissomaster which is a computer program.  The judge will input data into the Dissomaster program to determine the amount of child support one parent will be ordered to pay the other parent.  The types of data include 1) the amount of custody each parent has 2) the respective incomes 3) the monthly expenses 4)hardship expenses 5) multiple other expenses and data.  The Dissomaster will provide a child support number which the court will usually accept and order the supporting parent to pay the non supporting parent.

The guideline formula for computing child support is provided algebraically as follows:  CS = K [HN -(H%) (TN)] (See California Family Code Section 4055(a)).

CS equals Child Support;

K equals the amount of income to be allocated for child support as set forth in Family Code Section 4055(b)(3);

HN equals high earner’s net monthly disposable income;

H% equals approximate percentage of time high earner has or will have primary physical responsibility for the children compared to the other parent (where the parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner spends with each child);

TN equals total net monthly disposable income of both parties. (See California Family Code Section 4055(b)(1).

Child support, unlike spousal support, is not tax deductible to the paying spouse.  Furthermore, child support is not taxable as income to the parent receiving the child support.  It is important to have your attorney request child support payments at the outset of your divorce case if you are eligible to receive child support.  The issue of child support is a complex matter and should be discussed with your attorney.  For further questions, please contact Attorney Keith F. Simpson today at 310-297-9090 or read more about California divorce and family law at his websites http://www.simpsonlaw.net or http://www.caldivorce.net

Keith F. Simpson is a Manhattan Beach, California lawyer who practices law throughout the State of California. Call Attorney Keith F. Simpson today with your child support or divorce question.

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California Divorce Blog Temporary Spousal Support

January 1, 2011

As a divorce attorney, I often find the need to obtain temporary court orders for spousal support for my clients.  When a divorce or legal separation action is pending, the court may order either spouse to pay any amount necessary for the support of the other spouse pursuant to California Family Code Sections 4320(i), (m), and 4325.  An action is “Pending” from the time the petition is filed until its final adjudication on appeal or until the time for appeal has ended.  The Court may make a temporary spousal support order retroactive to the date of filing of a petition requesting spousal support.

DETERMINING TEMPORARY SPOUSAL SUPPORT

So, how does a court determine who will pay and how much spousal support should be paid?  There are two basic factors for the court to consider in awarding temporary spousal support.  First, the court evaluates the applicant’s need for support and the other party’s ability to pay.  (See Marriage of Stich (1985) 169 CA3d 64, 74, 214 CR 919.   Temporary spousal support may be ordered in any amount based uon the party’s need and the payor’s ability.  Findings of the trial court on need and ability are reviewed under the abuse of discretion standard.  (See Marriage of Wittgrove (2004) 120 CA4th 1317, 17 CR3d 489)

Generally, courts take the view that the purpose of temporary spousal support is to enable the supported spouse to live in his or her accustomed manner pending disposition of the action (See Estate of Fawcett (1965) 232 CA2d 770, 784, 43 CR 160.  See also Marriage of Wittgrove, supra; Marriage of Winter (1992) 7 CA4th 1926, 1932, 10 CR2d 225) However, courts do recognize that incomes are often insufficient to support two separate households and still maintain the same standard of living during a pending divorce.

Courts typically refer to “Guidlines” in an effort to determine temporary spousal support. A trial court’s use of guidelines based solely on affirmed income is appropriate.  See Marriage of Winter (1992) 7 CA4th 1926, 1933, 10 CR2d 225.  However, the Court may not use “Guidelines” when determining long term spousal support.

A temporary spousal support order is terminated by the issuance of a judgment, dismissal of the pending action or expiration under its own terms.  An order for temporary spousal support may be modified  or terminated by the court at any time.  Modification or termination may not, however, affect the payor’s liability for payments that accrued before the notice of motion or order to show cause to modify or terminate was filed.  (See California Family Code Section 3603)

Temporary spousal support may be modified without a showing of a change of circumstances (unlike post judgment spousal support).  See Sande v. Sande (1969) 276 CA2d 324, 329, 80 CR 826.

Current circumstances: In evaluating the parties’ respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. [Marriage of Prietsch & Calhoun (1987) 190 CA3d 645, 656, 235 CR 587, 590;Marriage of Baker (1992) 3 CA4th 491, 498, 4 CR2d 553, 557; seeMarriage of Rosen (2002) 105 CA4th 808, 824, 130 CR2d 1, 10—abuse of discretion to fix spousal support on basis of self-employed obligor's average income 2 years before support hearing where evidence at time of hearing showed substantially lower income]

“[A]n order for spousal support must be based on the facts and circumstances existing at the time the order is made.” [Marriage of Tydlaska(2003) 114 CA4th 572, 575, 7 CR3d 594, 595(emphasis added; internal quotes omitted)—request to modify spousal (and child) support properly denied for failure to file current income and expense declaration.
Special rule for modifications based on unemployment:A modification or termination of spousal support based on a spouse's unemployment “shall be” made retroactive to the laterof the date of service of the OSC/motion to modify or terminate or the date of unemployment, “unless the court finds good cause not to make the order retroactive and states its reasons on the record.” See California Family Code § 3653(b).  What amounts to§ 3653(b) “good cause” for nonretroactivity is left to case law development. The only case law on the point to date, however, involves a child support modification and the court's analysis placed heavy emphasis on the policy underpinnings of the statewide child support guideline which would not factor into a strictly spousal support modification; quite the contrary, the policy concerns underlying spousal support are entirely distinct from those associated with child support. Undoubtedly cognizant of that, the court in this case expressly stated it was not offering any opinion on the § 3653(b) “good cause” issue in instances not involving child support. [SeeMarriage of Leonard (2004) 119 CA4th 546, 560, 14 CR3d 482, 492, fn. 10]
I hope this blog regarding temporary spousal support has been informative. Please do not hesitate to contact Attorney Keith F. Simpson to discuss your divorce case today at (310) 297-9090.  The Law Offices of Keith F. Simpson, A Professional Corporation is located in Manhattan Beach, California.  Please also visit http://www.simpsonlaw.net or caldivorce.net for further information.

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California Divorce Blog — Japanese Parental Child Abduction and President Obama

November 17, 2010

It is disappointing that President Obama passed on an opportunity to discuss with Japanese Prime Minister Naoto Kan the epidemic of Parental Child Abductions in Japan.  After all, did not President Obama run on the platform of Change?  It appears that President Obama’s inaction in Japan signals the status quo will remain as policy for the present.

New Jersey Congressman, Rep. Chris Smith, urged President Obama prior to the trip to raise the “heartbreaking” issue of Parental Child Abduction with the Japanese Prime Minister.  Presently, Japan remains the only G-7 industrialized nation that has yet to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention has been adopted by more than 70 countries and is an important tool for those seeking access to and/or the return of a child abducted across international borders.

France recently passed a Resolution condemning Japan for its policy of not only allowing Parental Child Abduciton to occur but actually tolerating the policy.  According to The Japan Children’s Rights Network, Japan has never returned a child brought there by a parent in violation of a United States custody order.  This statement is also supported by the U.S. Department of State website.

Recently the House of Representatives passed H.R. 1326 “Calling on the Government of Japan to immediately…provide left-behind parents immediate access to their children”. Congressional members condemned Japan for permitting human rights abuse against children, denying them the love of a parent, relatives and friends.  Read the full text of H. Res. 1326 by clicking on this link. http://thomas.loc.gov/cgi-bin/query/z?c111:H.RES.1326:  The final vote passed on the Congressional floor.  Now it has been moved to the U.S. Senate for consideration.

I believe that Parental Child Abductions  are currently allowed to occur because most people are not aware of this epidemic.  It is only through blogs such as this as well as the public statements from Representatives, and websites like http://www.crnjapan.net that the public will become aware.  I believe we will see outrage over families being torn apart because of Japanese public policy.  Japanese law must be changed to recognize foreign child custody orders as is the case in all other First World Nations.  President Obama once again had a chance to address this issue with the Japanese Prime Minister, but failed all American Left Behind Parents by letting this golden opportunity slip by.

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International Parental Abduction to Japan

November 10, 2010

Throughout my career as a family law attorney I have encountered the issue of Parental Child Abduction more than I wish to admit. Parental Child Abduction occurs when one parent conceals, and or removes a child from their home jurisdiction without the consent of the other parent. If this occurs within the boarders of the United States there are laws to protect both the children’s and the parents rights.  When law enforcement is involved you should expect that the  children will quickly located.  However, when International Parental Child Abduction occurs and the children are absconded to a foreign land, the chances of reunification can become extremely complicated if not impossible.

Recently events occurring in the world of International Parental Abduction and the country of Japan have been in the spotlight.   Japan is not signatory to The Hague Convention on the Civil Aspects of International Child Abduction and remains the only first world nation which refuses to join. The Hague Convention was formed for the express purpose to provide an expeditious method for the prompt return of an abducted child from from one member nation to another member nation. The purpose of the Hague Abduction Convention is to preserve the existing court order and custody arrangement. While the Hague Convention may not be the perfect solution, it is a line of defense for the Left Behind Parent.  Since Japan is not a member nation there is no working framework to return an abducted child from Japan to another country. Unfortunately for American parents, the Japanese courts have been at best, reluctant, to return an abducted child to the United States despite a court order from an American court to do so.

The United States Department of State website provides in part,

“…in cases of international parental child abduction, foreign parents are greatly disadvantaged in Japanese courts, both in terms of obtaining the return of children to the United States, and in achieving any kind of enforceable visitation rights in Japan. The Department of State is not aware of any case in which a child taken from the United States by one parent has been ordered returned to the United States by Japanese courts, even when the left-behind parent has a United States child custody decree.”

http://travel.state.gov/abduction/country/country_501.html

International Parental Abduction is a terrible situation and can often render a Left Behind Parent helpless. They are faced with the prospect of losing custody of their child forever if the Japanese parent returns to Japan.

So, what is an American parent to do when a Japanese parent is threatening to return to Japan with the child or children?

As an attorney representing a parent that is faced with the possible abduction of a child to Japan it is imperative for me to plan a strategy to immediately get into court and educate the judge. Many judges are not aware that Japan is not a party to The Hague Convention on the Civil Aspects of International Child Abduction. This can and has been shown to sometimes lead to bad decision making.  If an American parent is faced with the possible abduction of their child by a Japanese Parent, making sure the judge is fully informed of his obligations under the law must be the focus of our petition.

Historically judges may choose to order a Japanese parent to post a bond if they wish to vacation with the children in Japan. A bond however has been shown to be useless time and time again.  No amount can replace the love of a parent / child relationship.  No amount can cover possible costs when faced with retaining a Japanese attorney to attempt to litigate the matter in Japan. As set forth above, the United States Department of State is not aware of any case where the child was successfully returned to America. It never happens!! Posting a bond may suffice if the parent is returning to a Hague Signatory nation. Since Japan is not a member nation a bond will never suffice as a safeguard for the non-Japanese parent.

I have found that Japanese parents typically argue to the court that they have significant ties to the community in the United States and pose no flight risk.  There are many reports of Japanese abducting parents stating time and time again that they promise to return after a short trip to see Grandma, never to be seen again. We have to respond and demonstrate to the courts successfully that the Japanese parent does not have significant ties.  There are a number of methods to demonstrate their lack of connection by producing relevant evidence. Another safeguard is to request that the court order the Japanese parent to surrender both the American and Japanese passports.  Unfortunately, there are again numerous reports of the local Japanese Embassy and Consulates issuing “emergency” passports to abducting Japanese Parents.  The American parent should also inform the local airport authorities of the situation and provide a detailed description of the child or children along with any recent court orders. If the Japanese parent is determined to return to Japan then it is vital to prevent the children from boarding the airplane.  Once the plane has departed the Left Behind Parent is in for the fight of their life!

Recently the United States House of Representatives, in H. Res. 1326 as well as a coalition of Ambassadors to Japan have stepped forward and condemned Japan for it’s lack of action when a citizen of Japan breaks International Law by parentally abducting a child.

“…the Government of Japan has refused to prosecute an abducting parent or relative criminally when that parent or relative abducts the child into Japan;”

“the Ambassadors to Japan of Australia, France, New Zealand, the United Kingdom and the United States, the Charges d’Affaires ad interim of Canada and Spain, and the Deputy Head of Mission of Italy, called on Japan’s Minister of Foreign Affairs, submitted their concerns over the increase in inter- national parental abduction cases involving Japan and affecting their nationals, and again urged Japan to sign the Hague Convention;”

The country of France is also in process of issuing condemnation through their senates special session.

“Japan does not punish the illicit transfer of children and it has not signed the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. “

My hope is that the nation of Japan will become a party to the Hague Convention and allow all left behind parents access to their abducted children immediately. If you are in an international marriage or relationship it is vital that you seek legal advice regarding the custody of your child if the other parent wants to return to his or her homeland without your consent.

For further assistance please contact Attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation

(310) 297-9090

http://www.simpsonlaw.net

http://www.caldivorce.net

http://www.lacountyfamilylaw.com

———————————————–

ref:

http://travel.state.gov, http://www.senat.fr, & The Japan Children’s Rights Network – http://www.crnjapan.net

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California Divorce Blog–Child Custody

October 2, 2010

The one issue in divorce cases which has the potential to make any case become extremely litigious and emotional is the issue of child custody. The breakup of a marriage is usually difficult enough. Try deciding who the children will live with and how often!!

Unfortunately, children often become pawns in a chess match when discussing child custody. For example, one spouse may be angry with the other spouse because of an affair. This spouse may attempt to extract revenge by not allowing the other spouse time with the children. There is a saying that in Criminal Law, you find bad people acting their best in court. In Family Law, you find good people acting their worst in court.

So what is the law regarding child custody? Who decides who will have the children? In California, family law cases are decided by a Judge or Commissioner. There are no jury trials in California Family Law Courts.

California law provides that it is in the public policy of the State to ensure minor children frequent and continuing contact with both parents after their separation or dissolution except when that contact would not be in the child’s best interest. California Family Code Section 3011 sets forth factors which indicate when it is not in the child’s best interest. If there is a question as to whether the issue of frequent and continuing contact conflicts with the health, safety and welfare of the child then the court will typically side with the child’s safety and fashion a visitation order to ensure the child is safe.

Parents often make the mistake of assuming that child custody is awarded according to what is in their best interest. This is not the case. Custody orders are often inconvenient for parents and that is because the orders are made according to what is in the child’s best interest.

If you have any questions about child custody issues please do not hesitate to contact the Law Offices of Keith F. Simpson, A Professional Corporation, to discuss your case today. Attorney Keith Simpson is located in Manhattan Beach, California. Attorney Keith Simpson writes this California Divorce Blog and practices Family Law in Manhattan Beach, California.

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California Divorce Blog (Dodger Divorce and Postnuptual Agreements)

September 21, 2010

Well, if you live near Los Angeles or you follow Major League Baseball you probably know that the owners of the Los Angeles Dodgers have decided to litigate their divorce trial. My law office is located in Manhattan Beach, California and I regularly appear in the Superior Court of California, County of Los Angeles, Central Court located in downtown Los Angeles at 111 North Hill Street, Los Angeles, California 90012. This is the same courthouse where the Dodger owners are having their case heard before Superior Court Judge Scott Gordon. I have appeared before Judge Gordon and must say that he is an excellent Judge and very fair minded.

Mr. McCort and Mrs. McCort both have very well known attorneys to litigate their divorce case and both attorneys had to agree at the outset upon having Judge Scott Gordon preside over their divorce case.

So everyone knows by not that the McCorts are divorcing and that the media is reporting daily about the case. So what is the big deal? Is this just another divorce case like all others which you can go see down at the court on any given day? Aside from the case involving the Los Angeles Dodgers and their owners, there is one very interesting issue. That issue has to do with Postnuptual Agreements.

What is a Postnuptual Agreement? In California, spouses may enter into a written agreement to change the character of property from separate property to community property or from community property to separate property. (See California Family Code Sections 850 and 1500). So what is community property? Community property is generally defined as all property acquired during marriage (assets and debts) with the exceptions of gifts and inheritance. Separate property is generally defined as all property owned before marriage, after separation or property received by gift or inheritance.

Getting back to the McCort’s divorce, it has been reported that the McCorts entered into a Postnuptual Agreement. That is to say that after the McCorts married, the McCorts signed an agreement which purported to change the character of some of their marital property. It is reported that Mr. McCort is alleging that Mrs. McCort signed a Postnuptual Agreement which transferred her community property ownership interest in the Los Angeles Dodgers to Mr. McCort in exchange for receiving Mr. McCort’s ownership interest in other community property (houses). Mrs. McCort’s attorneys are raising many defenses to this argument in an attempt to convince the Court that the Postnuptual Agreement is not enforceable.

Generally, for a Court to find that a Postnuptual Agreement is enforceable the Court must find the the following: The Postnuptual Agreement must be an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. (See California Family Code Section 852(a).

It was reported today that there were multiple versions of the Postnuptual agreement. If there were multiple versions of the Postnuptual Agreement then that may suffice as evidence that the agreement was not consented to or accepted by Mrs. McCort. It would certainly appear to be an issue which the Court may consider. No one knows how the Court will rule. I guess we will all have to wait until the bottom of the 9th inning when last out is called.

If you have any questions or comment about my California Divorce Blog or wish to discuss your California Divorce please call Attorney Keith F. Simpson at (310) 297-9090. Attorney Keith F. Simpson is a California Family Law Attorney located in Manhattan Beach, California and represents clients in Courts throughout California.

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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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