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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–Child Support, Spousal Support, Taxes and Wage Withholding

August 4, 2012

I am often asked how payment of Child Support and Spousal Support impact taxes.  Simply stated, Child Support is not tax deductible to the person paying Child Support. Therefore, the person receiving the Child Support is not taxed on the money received for Child Support. The reason for this is that Child Support is not considered to be income.

Spousal Support is considered to be income for tax purposes. Therefore, the person paying Spousal Support receives a tax deduction for the amount paid as Spousal Support. Similarly, the person receiving Spousal Support is taxed on the amount of Spousal Support paid because the Spousal Support is considered to be income.

I am also asked about how an employer is supposed to withhold child support or spousal support from an employee paycheck.  Before an employer deducts money from an employee’s paycheck for support, the employer must first determine the Employee’s “Disposable Income”.

How to Determine Disposable Income

There are two basic steps to determine how much to withhold for child support from an employee’s income: calculating disposable income and calculating allowable disposable income.

  1. Disposable Income = gross pay – mandatory deductions
    • Disposable income is the amount of earnings remaining after subtracting mandatory deductions from an employee’s gross pay.
    • Mandatory deductions include federal, state and local taxes, unemployment insurance, workers compensation insurance, state employee retirement deductions, and other deductions determined by state law.
    • Note that disposable income is not necessarily the same as net pay. An employee may have a deduction taken from his pay that is not mandatory, such as union dues or a credit union car loan payment, or some other voluntary allotment.
  2. Allowable Disposable Income = disposable income x CCPA % limit
    • Allowable disposable income is the maximum available for child support withholding. The ordered child support amount will usually be less than the allowable disposable amount and then the ordered amount maybe withheld in full. Even if the withholding order specifies a higher payment, the allowable disposable income is the most that may be withheld.
    • The Federal Consumer Credit Protection Act (CCPA) sets limits on withholding from an employee-parent’s disposable income based on his/her current family situation and child support payment history. The CCPA protects the employee from having an excessive amount withheld. (Some states have enacted laws that provide even more protection to the employee-parent’s income, although most states follow the federal limits.)
    • The withholding limits set by the federal CCPA are as follows:
      • 50% Supports a second family, with no arrears or < 12 weeks in arrears
      • 55% Supports a second family, and more than 12 weeks in arrears
      • 60% Single, with no arrears or < 12 weeks in arrears
      • 65% Single, and is more than 12 weeks in arrears.

Allowable Disposable Income Example

  • Weekly gross pay is $760
  • Weekly child support due is $295
  • Mandatory deductions total $151
  • Employee-parent is single and does not owe back child support

Note the following differences between net pay and disposable income in this example. The amount of disposable income, $609.00, is used to determine child support withholding limits, rather than the net pay, $469.

 

Disposable Income Net Pay
Gross Pay $ 760.00 $ 760.00
Deductions Less mandatory deductions only Less deductions
Federal income tax - 95.00 - 95.00
FICA - 45.00 - 45.00
Medicare - 11.00 - 11.00
Union dues - 10.00
Savings bonds - 25.00
Union pension - 30.00
Credit union car loan - 50.00
$ 609.00 $ 469.00

 

Step 1:
Gross pay – mandatory deductions = disposable income:
$760 – $151 = $609.00
Step 2:
Disposable income x CCPA % limit = allowable disposable income:
$609 x 60% = $365.40

Note that 60% is the applicable CCPA limit because the employee-parent is not supporting a second family and does not owe any back child support.
Allowable disposable income is the maximum available for child support withholding.
Allowable disposable income (from Step 2 above) is 365.40.

  • $365.40 > $295.00, so the full $295 is withheld for child support.

If you take the same example but increase the weekly child support payment to $400, you may not withhold the full amount due. By law, you may only withhold a maximum of $365.40. This means that the employee will fall behind by $34.60, and will be “in arrears.” Some states charge interest on the overdue amounts. The employee has the option of paying the underpaid amount directly to the issuing agency if he or she does not want to fall into arrears, or the employee may ask that the employer “voluntarily” withhold the unpaid amount.

Application of the Requirement

If there is enough allowable disposable income, the employer should remit the full amount of current support due for each order. Sometimes an employee’s earnings do not stretch far enough to pay all of his or her orders. If there is not enough allowable disposable income, the allocation method of the employee’s principal place of employment (state of official duty station) must be followed to determine how much to pay for each order. States use one of two methods to allocate withheld payments among multiple withholding orders:

  1. Prorate by allocating a percentage to each order based on the total dollar amount of current support ordered; or
  2. Share equally by dividing the allowable disposable income by the total number of orders.

Multiple Income Withholding Orders – Same Employee and Different Children

If there is more than one withholding order, federal regulations require that some money must be paid to each order for current support. In addition, states have enacted laws specifying the method for allocating money toward current support due for each order. Thus, some money must be allocated toward all orders. The orders should not be paid on a “first come, first served” basis.

Example:

  • Order A current support owed: $ 220/biweekly
    Arrears owed: $ 50/biweekly
  • Order B current support owed: $ 200/biweekly
  • Order C current support owed: $ 180/biweekly
  • Employee’s disposable income: $1000/biweekly
  • Allowable disposable income: $550

Because employee is supporting more than one family and is in arrears, the CCPA limit is 55% x disposable income (55% x $1000 = $550)

Withholding:

  • Total current support owed: $600/biweekly
  • Total arrears owed: $ 50/biweekly
  • There is not enough allowable disposable income ($550) to withhold the entire amount of current support due for all these orders ($600). Therefore, nothing may be withheld to satisfy the arrearage.

The issue of withholding Child Support and Spousal Support can be a tricky issue whether you are a party to a legal action or an employer tasked with the legal duty to withhold the proper amount of support. Please contact Attorney Keith F. Simpson today to discuss your legal issue at (310) 297-9090 or visit http://www.simpsonlaw.net to view more information.

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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–Move Away Request

July 9, 2011

As a California Family Law Attorney I am often asked by parents with a custody sharing agreement about how to move away from the area with the children.  This is often referred to as a “Move Away” matter.  Typically, a parent might receive a new employment opportunity out of state, or have family out of state, and decide that it will be better to relocate with the children.  California law does allow for a parent to relocate out of State with the children but only upon the parent first obtaining court approval.  There are many ways to obtain court permission (a court order) which is discussed below. The issue arises when the non-moving parent objects to the Move Away out of state (or out of the area since California is a large state).

I always recommend first discussing the matter with the non-moving parent. If the non-moving parent agrees with the move away then we can simply draft the required documents and request the Court to sign. This is the easiest way to accomplish a move away out of state.

If the non-moving parent objects to the move away then we must file a motion with the court and request a court order to allow the move away out of state.  The non-moving parent will have the opportunity to object to the move away and the court will hold a full court hearing.  If the matter is very complex the court  may order that Minor’s counsel be appointed for the child or children and a California Family Code Section 730 Evaluation occur to evaluate what is truly in the best interest of the children.  After an evidentiary hearing the court will either conclude that the moving parent may move away with the children or the moving parent may not move away with the children.  (The judge cannot order the moving parent to remain in the area however the judge can order the children to stay with the non-moving parent).  These are the possible Court orders.  Therefore, I do not recommend that you attempt to pursue this matter without an attorney.  This area of law is extremely complex and therefore requires legal representation in my opinion.

Now for the law on Move Away matters. In California, the Custodial Parent has a presumptive right to change the children’s residence.  By statute, the parent with sole physical custody of the children has the presumptive right to change the children’s residence—i.e., to move away with the children; courts will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child. “A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” [Fam.C. § 7501(a); Marriage of Burgess (1996) 13 C4th 25, 32, 51 CR2d 444, 449; see Marriage of LaMusga (2004) 32 C4th 1072, 1094, 12 CR3d 356, 372—custodial parent's presumptive right to relocate with children not dependent on whether parents had history of cooperative coparenting]

Codified public policy: The Legislature has elevated the Supreme Court’s ruling in Burgess (the modern-day seminal case in this area), as developed below, to statewide public policy: “It is the intent of the Legislature to affirm the [Burgess] decision … and to declare that ruling to be the public policy and law of this state.” [Fam.C. § 7501(b)].

However, there is not an absolute right to relocate or Move Away.   Section 7501 unambiguously provides that the custodial parent’s right to relocate with the children is presumptive only—not absolute; that right may be curtailed if the move would result in detriment to the children. This is so even if the custodial parent has been awarded both sole legal and sole physical custody; he or she nonetheless has no “inherent” or “absolute” right to change the children’s residence. “[T]he statute contains no qualifying language purporting to limit its application to parents with only certain custodial rights.” [Marriage of Brown & Yana (2006) 37 C4th 947, 957, 38 CR3d 610, 616; see also7:562a re noncustodial parent's standing]

The Standard and burden of proof is as follows:  Generally, the governing standards and burdens of proof in move-away cases are the same as in all custody adjudications:

Initial custody adjudications—best interest analysis: In an initial custody determination, the trial court has the “widest discretion to choose a parenting plan that is in the best interest of the child” (Fam.C. § 3040(b)) and must look to all the circumstances bearing on the child’s best interest (including, of course, the mandatory § 3011 factors, ¶ 7:312 ff.). [Marriage of Burgess, supra, 13 C4th at 31–32, 51 CR2d at 449; see Ragghanti v. Reyes (2004) 123 CA4th 989, 996, 20 CR3d 522, 527(trial court used correct “best interest” analysis because parties stipulated there was no existing “final permanent custody order”)]

The trial court must take into account the custodial parent’s presumptive right to change the children’s residence so long as the removal would not prejudice their rights or welfare (Fam.C. § 7501(a)). Accordingly, in considering all the pertinent circumstances affecting the children’s best interest, the court may consider any effects of a contemplated relocation on their rights or welfare. [Marriage of Burgess, supra, 13 C4th at 32, 51 CR2d at 449; Marriage of LaMusga, supra, 32 C4th at 1087, 12 CR3d at 366]
Stated another way, in an initial custody decision, the planned move and any resulting prejudice to the children must be considered; but those factors do not preclude the court from also considering all other circumstances bearing upon the children’s best interest. The noncustodial parent does not have a burden to show the move will be detrimental; “under the best interest analysis [applicable to initial custody adjudications], the trial court’s consideration of the evidence is not limited by the need to make a threshold finding of detriment.” [See Ragghanti v. Reyes, supra, 123 CA4th at 997–998, 20 CR3d at 528 (brackets added)—although child had lived with Mother first 6 years of her life, trial court acted within its discretion in determining it was in child's best interest to live with Father, awarding him sole custody]

Some questions which will need to be addressed in a Move Away Motion are as follows:

• the children’s interest in stability and continuity in the custodial arrangement;

• the distance of the move;

• the children’s age;

• the children’s relationship with both parents;

• the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the children’s interests above their individual interests;

• the children’s wishes if they are mature enough to make that inquiry appropriate;

• the reasons for the proposed move; and

• the extent to which the parents currently are sharing custody.

As discussed above, this is a very complex area of California Family Law and I therefore recommend that you contact a competent attorney to represent you if you are contemplating pursuing or opposing a child custody Move Away motion.  Please contact Attorney Keith Simpson to discuss your legal matter today at (310) 297-9090 or visit his website at http://www.simpsonlaw.net.  Attorney Simpson is located in Manhattan Beach, California and practices Family Law throughout California.

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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–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–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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