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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– Assistant U.S. Secretary of State Comments on Parental Child Abduction in Japan

June 17, 2012

According to multiple sources including the Mainichi Shinbun, a Japanese newspaper, American Diplomat and academic Dr. Kurt Campbell, the current United States Assistant Secretary of State for East Asian and Pacific Affairs, spoke to families of Japanese victims kidnapped by North Korea. During the meeting Assistant Secretary Campbell voiced his support for the Government of Japan to take action on the issue of Parental Child Abduction (presumably urging support for the Hague Convention).  This wrinkled feathers as the Japanese Government views the two issues as separate and distinct. Kidnapping as a state sponsored action as compared with parental child kidnapping.

Certainly the two issues are separate. However, an argument can certainly be made that they are one in the same if the Japanese Government is complicit in allowing parental child kidnappings to occur in Japan. I believe this is the case.

The world has been urging Japan, a first world nation, for years to on to sign on to, and ratify the Hague Convention on the Civil Aspects of International Child Abduction.  The Government of Japan, which has again stated that Japan will sign the Hague Convention, has requested amendments to it, prior to signing. The problem with this request is that all parties have signed the Convention in its present form.  If Amendments were made to the convention then this would require ratification and likely dilute enforcement of its provisions.  It is best for all non-party nations to sign on to the Hague Convention as children should not be allowed to be spirited away from one country to the next without permission.

The United States Department of State recently made changes in how it approaches cases involving children in Japan.  An American parent recently received communication from the State Department which provided in part that “the Office of Children’s Issues’ (OCI) procedures have recently changed and we will be unable to request future welfare visits for your children, as we are no longer making these requests for access-only cases.”  This seems to indicate that the Department of State will no longer work on these types of cases which is very unfortunate for American parents with children in Japan who are being denied visitation by their ex-spouses. Recently OCI has been referring parents of children abducted to Japan to the Japanese Court system.  As we are all aware, a referral to the Japanese Court System to obtain custody has been a dead end referral to date. It is certainly the very rare exception when any non-custodial parent prevails in the Japanese Court system.  Everyone is aware of this issue, which makes this a sad day for American parents of children stuck in Japan.

I became an attorney because I believe in the Rule of Law. Without law we would have anarchy. There are places in the world where the Rule of Law is non-existent. We all know what happens when this occurs. The Country of Japan does not have the Rule of Law regarding Parental Child Abductions.   I urge Japan to ratify the Hague Convention as they have indicated they may.  Parents and children demand the certainty of the Rule of Law. Without it we are simply left with chaos, which clearly does not work.

Attorney Keith F. Simpson is a California Lawyer in Manhattan Beach, California and represents clients regarding all types of Family Law matters. Please call Keith Simpson today to discuss your question at 310-297-9090.

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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–Unpaid Child Support

May 21, 2011

I often receive questions from people about unpaid child support.  Can I still collect on unpaid child support? Does interest accrue on unpaid child support?  The answers to both of these questions are yes.

California law provides that a child support judgment is enforceable until paid in full or otherwise satisfied—even after the child reaches age 18. This includes interest and penalties computed thereon. (California Family Code Sections 291(a) and 4503).  See also Marriage of Hamer (2000) 81CA4th 712, 718, 97 CR2d 195, 199.

Regarding child support arrearages (unpaid child support), like all money judgments, California child support orders accrue post judgment interest at the legal rate of 10% per annum.  Unless the judgment provides otherwise, the interest accrues as to each installment when each installment becomes due and continues to accrue for so long as the arrearage remains unpaid. See California Constitution Article XV, Section 1; California Codes of Civil Procedure Sections 685.010(a), (b), 685.020(b); Marriage of Hubner (2004) 124 CA4th 1082, 1089, 22 CR3d 549, 553-554.  Since the interest on arrears accrues and is payable as a matter of law, trial courts are without authority to waive or forgive interest accrued on past-due child support amounts, just as courts cannot retroactively modify or terminate the arrearages themselves. See Marriage of Hubner (herein); Marriage of Robinson (1998) 65 CA4th 93, 98, 76 CR2d 134, 137; Marriage of McClellan (2005) 130 CA4th 247, 259, 30 CR3d 5, 14-15.

If you have a valid order or judgment for the payment of Child support in California, you have the right to demand payment and enforce the judgment. There are many ways to enforce a child support order (this will be a discussion for another time).  If the parent who is ordered to pay child support refuses to pay, it is important that you see an attorney immediately to discuss your rights and possible remedies. Please contact Attorney Keith F. Simpson at (310) 297-9090 to discuss your child support issues today!

The Law Offices of Keith F. Simpson, A Professional Corporation, is located at 1230 Rosecrans Avenue, Suite 170, Manhattan Beach, California 90266.  You may also review the website at http://www.simpsonlaw.net or call Keith Simpson to schedule an appointment.

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California Divorce Blog–Japan Reportedly Nearing Ratification of Hague Convention

April 30, 2011

This week I read Japan Today which reported positive news about Japan and its apparent move to ratify the 1980 Hague Convention on Civil Aspects of International Child Abduction.  The article provides in part:

“Two weeks ago, the Japanese government made a notable announcement that may make Japan more compatible with the legal conventions used internationally, and will be of particular benefit to non-Japanese spouses of Japanese. The announcement was that by 2010, Japan would sign the the 1980 Hague Convention on Civil Aspects of International Child Abduction, an international legal construct that attempts to deal with the thorny issue of court jurisdiction when children of international marriages are moved cross-border, often by a parent trying to thwart a court ruling in the previous jurisdiction.

Currently, Japan is known as a haven for disaffected Japanese spouses who, in getting divorced, abscond with their kids back to Japan. Once in Japan, they can dare their foreign spouses to try getting the kids back—something that despite around 13,000 international divorces a year in Japan and more overseas, has NEVER happened.

The reason for this astounding statistic, that of zero repatriations of abducted children from international marriages after the kids have been abducted to Japan, is entirely to do with the attitudes of the Japanese judiciary and their wish to maintain 19th century customs in the face of international pressure. Japan has ratified many parts of the Hague Convention treaties over the years, but in terms of repatriation of kids, they have been claiming for 20 years now to be “studying” the issue.”

Regardless of the reason for this sudden shift in potential policy, it is certainly a welcome change for everyone around the world and especially those parents who have a child with a Japanese citizen.  Unfortunately for parents of children who have already been abducted to Japan, this will provide little sense of relief.  Any provisions to ratify the 1980 Hague Convention on Civil Aspects of International Child Abduction would not apply to child abductions which occurred prior to ratification.  Nonetheless, Article 21 of the 1980 Hague Convention on Civil Aspects of International Child Abduction does establish and enforce rights and rules for child visitation.  Unfortunately, even assuming the Japanese government does ratify the 1980 Hague Convention on Civil Aspects of International Child Abduction, it will certainly require a monumental change by the Japanese Court system!

Article 21 provides as follows:

“Article 21

An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”

A link to the full text of the convention is as follows: http://www.hcch.net/index_en.php?act=conventions.text&cid=24

We will wait and see what Japan decided to do in the following weeks. Hopefully it will be good news for everyone.

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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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