California Divorce Blog–Date of Separation

January 1, 2016

In 2015, the California Supreme Court made a big splash by changing how the Date of Separation is determined in a divorce. (See Marriage of Davis 2015). The Court ruled that parties who file for divorce yet continue to live with their spouse under the same roof are not separated. While there is an exception to this rule, it is safe to assume that you and your spouse are not separated until you file for divorce and vacate the residence. If both of you continue to reside in the same residence then you may assume you are not separated.

So, why is this a big deal? The Date of Separation can significantly impact your case in terms of Community Property and Spousal Support. California is a Community Property state. Generally speaking, property acquired during the marriage is Community Property and divided 50/50. Once a Date of Separation is established then spouses typically acquire Separate Property. The Davis decision stands for the proposition that even though a spouse has filed for divorce, if the spouses continue to reside in the same residence then they are not separated. This means that all property continues to be Community Property and therefore divided 50/50 (Income, Retirement Plans (IRA, 401K, 403b, Pension), and Real Estate for example.

The length of marriage also continues to accrue if you are not married. This is significant because the term for payment of Spousal Support is often determined by the length of the marriage.

Please contact Attorney Keith F. Simpson if you have any questions regarding Date of Separation or your Divorce at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, is located in Manhattan Beach, California.

California Divorce Blog–Divorce and Your Living Trust

August 16, 2015

People who are starting the divorce process in California should consider drafting a Will and/or Revocable Living Trust. Many people tell me that they want to revise their Living Trust after their divorce is finalized. There are many problems with this approach. First, in the event you pass away while your divorce is pending the result is that your divorce case is dismissed and the terms of your Will or Revocable Living Trust control. For most people, this means that you leave everything you own to your spouse! Yes, this is the spouse who you were seeking to divorce prior to passing away. This is almost certainly not the desired result for most people.

To avoid this potential pitfall, I suggest that you have a new Will and Revocable Living Trust drafted prior to filing for divorce. If your divorce case is pending then it is not too late to have a new Will and Revocable Living Trust drafted. This will allow you to have your share of the marital assets distributed to your beneficiaries whenever you pass away. Also, it relieves you of having to worry about your soon to be Ex Spouse receiving a windfall by receiving your 50% of the marital assets in the event of your untimely demise.

You may also want to have a new Durable Healthcare Power of Attorney formed. This document specifies who you want to make health care decisions in the event you are still alive yet disabled. This typically arises in a situation where a person is comatose and unable to act on their own behalf. If you have your spouse named as the person in charge then this may be your unlucky day because you are also divorcing your spouse in our hypothetical. What if you and your spouse are estranged? Do you really want your spouse deciding whether to pull the plug?

It is important that you discuss estate planning issues with your divorce attorney at the outset of your case. Please call Attorney Keith F. Simpson today to discuss your Family Law case at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, are located in Manhattan Beach, California. You may also visit the website at http://www.simpsonlaw.net to e-mail Attorney Keith F. Simpson today.

California Divorce Blog–Child Custody Move Away

December 7, 2014

I am often asked if a parent who has primary custody, or even Sole Legal Custody and Sole Physical Custody, may Move Away with the child without a Court Order. Generally, the answer is NO. Parties should seek Court Approval of the Move Away before moving with the child. The adverse consequence could include losing custody of your child.

By statute, a parent with sole physical custody of the children has the presumptive right to change the children’s residence, subject to the court’s power to restrain a removal that would “prejudice the rights or welfare” of the children. (See Family Code Section 7501(a); Marriage of Burgess; Marriage of LaMusga; F.T. v. L.J.–Parent does not have presumptive right to relocate with children unless awarded custody by way of “final judicial custody determination.)
But the custodial parent has no more than a presumptive right to relocate with the children, and this is true even if he or she has also been awarded sole legal custody. A sole physical and legal custody order does not terminate the other parent’s parental rights or due process interest in parenting; the noncustodial parent still has standing to oppose the relocation and to seek and obtain a custody modification based on a proper showing of detriment and changed circumstances. (Marriage of Brown).
If you are entertaining the thought of moving away with your Children you should first consult a Lawyer. Also, if your child’s parent is requesting to move away with your children you should first discuss with an attorney. I am often called the week before a scheduled move and asked whether it is permissible to move away with children without a court order. Please understand that it can take generally between two to six months to obtain a Move Away order assuming the parent seeking the move away is successful.
Please call Attorney Keith F. Simpson today to discuss your Family Law case at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, are located in Manhattan Beach, California. You may also visit the website at http://www.simpsonlaw.net to e-mail Attorney Keith F. Simpson today.

California Divorce Blog–Community Property Epstein Credits and Watts Charges

December 4, 2014

Division of Community Property can be a complicated subject when dealing with issues regarding real property (real estate). For example, if parties separate and one party remains in the family house and the other party moves out but continues making the mortgage payment, how does the court handle this issue?

The Court will charge the spouse living in the family residence a form of rent which is reimbursement for value of post separation use of community property called “Watts Charges”.  Just as a spouse may have a reimbursement claim against the community for postseparation separate property payments on a community debt, the community may have a reimbursement claim for the value of one spouse’s exclusive use of community property between the date of separation and the date on which the community no longer has an interest in the property—so-called “Watts charges.” (Marriage of Watts (1985) 171 CA3d 366, 374, 217 CR 301, 306)—trial court has authority to order reimbursement to community for spouse’s postseparation exclusive use of community asset; (Marriage of Bell (1996) 49 CA4th 300, 311, 56 CR2d 623, 630—judgment reversed because (among other things) trial court neither ordered reimbursement to community for spouse’s postseparation exclusive use of CP residence nor explained why reimbursement not ordered; and see Marriage of Falcone & Fuke (2012) 203 CA4th 964, 978-979, 138 CR3d 44,59-60—where asset not owned outright by community but is being financed, spouse in possession may satisfy duty to compensate community by making monthly finance payments from his or her separate property (so-called “Epstein credits”]

A typical scenario occurs after separation where one spouse is making payments on a community property home in which the other spouse is given the right of exclusive possession pending sale and a division of the proceeds. To effect a net overall equal division, the trial court may properly award the paying spouse Epstein credits for his or her SP payments on the house and charge the occupant spouse with the full Watts postseparation use value. In effect, the “Epstein credits” are paid from the community and the “Watts charges” are paid to the community, which should yield an equal sharing ofEpstein credits by both spouses and an equal bearing of Watts charges by both spouses. (Marriage of Jeffries (1991) 228 CA3d 548, 553, 278 CR 830, 833).

If your divorce case involves the division of real property, you should contact Attorney Keith F. Simpson today. California real estate is typically the most valuable asset held by a married couple. It is important to maximize the return on your real property investment by seeking all reimbursements and credits owed to you.  Attorney Keith F. Simpson is located in Manhattan Beach, California. You may contact the Law Offices of Keith F. Simpson at http://www.simpsonlaw.net or call at (310) 297-9090.

California Divorce Blog–Alcoholism and the Alcoholic

December 2, 2014

Addiction issues are often the root cause of divorce. When a person is addicted to a substance they are not the same person. Unfortunately, this causes the entire family to suffer.  If you are an alcoholic, or are married to an alcoholic, you should be aware of the potential impact upon your divorce case.

The Court may consider the history of drug abuse when determining Child Custody.  In determining the child’s best interest, trial courts also must consider either parent’s “habitual or continual” alcohol abuse, their “habitual or continual” illegal use of controlled substances, or their “habitual or continual” abuse of prescribed controlled substances (as defined in California Health & Safety Code Section 11000 et seq.; See California Family Code Section 3011(d)).

Before considering allegations of a parent’s drug oralcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. (See California Family Code Section 3011(d)).

Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances (as defined in California Health & Safety Code Section 11000 et seq.) or alcohol; and may order either or both parties to pay the costs of such testing. (California Family Code Section 3041.5)
(The statutory conditions are intended to address the constitutional concerns noted in prior case law that interpreted the then-existing Family Code as not authorizing compelled drug/alcohol testing in custody litigation (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266-269, 100 CR2d 749, 752-754). 
If alcoholism or addiction issues are present in your Divorce case, it is important to seek immediate legal representation. The alcoholism may significantly impact the issue of child custody, child support and/or spousal support.  Please call Attorney Keith F. Simpson today to further discuss your legal matter at (310) 297-9090. You may also e-mail Keith Simpson at http://www.simpsonlaw.net. Thank you for reading this blog.

California Divorce Blog–Domestic Violence

December 1, 2014

I often handle family law matters involving the issue of Domestic Violence Restraining Orders. Domestic Violence can have a detrimental impact upon everyone involved in the case. The victim is often traumatized and scarred both physically and emotionally. Also, a finding of Domestic Violence can cause the perpetrator to have significantly reduced child custody and also cause a higher spousal support order.

Upon a finding by the court that the person seeking custody has perpetrated domestic violence against the other party, the child or the child’s siblings within the past five years, there is a rebuttable presumption that a sole or joint physical or legal custody award to the perpetrator would be detrimental to the child’s best interest. This presumption may be rebutted by a preponderance of the evidence. (See California Family Code Section 3044(a).

For purposes of Family Code Section 3044, a person has “perpetrated domestic violence” when the court finds that he or she (i) intentionally or recklessly caused or attempted to cause bodily injury or sexual assault; (ii) placed a person in reasonable apprehension of imminent serious bodily injury to that person or another; or (iii) engaged in any behavior involving (but not limited to) threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a Family Code Section 6320 ex parte order could issue to protect the other party seeking custody of the child or to protect the child and child’s siblings.  (See Family Code Section 3044(c))

Domestic violence is a very serious matter. The NFL started an advertising campaign this year after the Ravens football team released running back Ray Rice for Domestic Violence against his then fiancé. In a Family Law matter, the issue of Domestic Violence usually significantly impacts the outcome of a case. For the Perpetrator of Domestic Violence, it can cause mandated Supervised Visitation, loss of custodial time with his or her children and/or loss of custodial time all together. For the victim, it can cause emotional scars which last a lifetime.

If you are involved in a Domestic Violence matter, please call Attorney Keith F. Simpson today to discuss your case at (310) 297-9090. Keith Simpson is a Manhattan Beach lawyer with the Law Offices of Keith F. Simpson, A Professional Corporation. You may also contact Keith Simpson at http://www.simpsonlaw.net and send an e-mail. Thank you for reading my blog.

California Divorce Blog–Child Support and Spousal Support

November 30, 2014

I find that the most commonly litigated issues relate to child support and spousal support. This is somewhat understandable. A recent case sheds some light on the aspect of “Imputing Income” to a non-working spouse or a spouse who is chronically underemployed.

In Charles McHugh v. Connie McHugh from the Fourth Appellate District from the State of California, Court of Appeal (Certified for publication on November 26, 2014), Mr. McHugh filed a motion to reduce his child support obligation because he lost his job as a commissioned salesman. In opposition, Ms. McHugh asked the court to increase his child support because Mr. McHugh lost his job for diverting business to his Father’s business. The employer had offered Mr. McHugh an opportunity to retain his job if he disclosed his misconduct and fully repaid restitution. The Trial Court denied Mr. McHugh’s request to reduce his child support and granted Ms. McHugh’s request to impute income to Mr. McHugh as though he were earning the same income as before.

Family Code section 4058, subdivision (b), grants trial courts discretion to set child support based on a parent’s earning capacity rather than actual income if the court finds the parent has the ability and opportunity to earn income at the level to be imputed. The court provided,”We affirm the trial court’s order exercising its discretion to impute income under section 4058, subdivision (b), because substantial evidence supports the findings that (1) Charles had the ability and opportunity to keep his job; (2) his termination was a voluntary divestiture of resources required for child support obligations because of his misconduct in diverting business to his father’s company to avoid his support obligations and deliberately failing to satisfy his employer’s conditions for keeping his higher paying job; and (3) imputing income to Charles was in the child’s best interests.”

The Family Code has granted the trial court discretion when imputing income to a parent based on his or her “earning capacity.” (§ 4058, subd. (b).) Specifically, section 4058, subdivision (b) states, “The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.”

As the moving party seeking to modify the existing support order, Charles bore the burden to show not only that he lost his Amcor job, but also that he lacked the ability and opportunity to keep that job and continue earning at the same level. (Bardzik, supra, 165 Cal.App.4th at p. 1304; Eggers, supra, 131 Cal.App.4th at p. 701.) Here, it is undisputed Amcor fired Charles, but it also is undisputed Amcor gave Charles the opportunity to keep his job if he satisfied three conditions: (1) fully disclosing all information about his improper conduct; (2) paying Amcor restitution for the business he diverted; and (3) entering into a last chance employment agreement with Amcor. Accordingly, to obtain an order reducing his support obligations it was Charles’s burden to present evidence showing he could not satisfy these conditions, and therefore did not have the opportunity to keep his job.

We can all learn important lessons from this case when it comes to seeking a modification of support. First, people do not realize when they seek a support modification that it is possible for the court to modify in the other direction. For example, a party seeking to modify support downward may be surprised to have the court modify the support upward.  Second, a party seeking a downward modification due to job loss must show that there was no possibility of retaining the job. Third, the court can impute income because California Family Code Section 4058 allows for the Court to set Child Support based upon a party’s earning capacity as opposed to actual income. Many people are surprised to learn this.

If you have any questions regarding Child Support, Spousal Support or Family Law, please call Attorney Keith F. Simpson today at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, is a full service family law firm located in Manhattan Beach, California. You may also view the website http://www.simpsonlaw.net to contact Attorney Keith F. Simpson today!

California Divorce Blog–Domestic Violence

September 8, 2014

Today the video was released regarding Baltimore Ravens running back Ray Rice striking his then fiancé in an elevator.  This raises the issue of Domestic Violence and what the victim of Domestic Violence can do in such an awful situation. The Baltimore Ravens announced today that Ray Rice is no longer with the team.

Protective orders may be obtained ex parte on an emergency basis (“emergency protective orders”) in cases of imminently threatened domestic violence, child abuse and/or child abduction, stalking, or elder or dependent adult abuse. (See California Family Code Section 6240 and Penal Code Section 646.91; Also, Family Code Section 6241).  —presiding judge shall designate at least one judge, commissioner or referee “to be reasonably available to issue orally, by telephone or otherwise, emergency protective orders at all times whether or not the court is in session”)

It is so important for victims of Domestic Violence to seek help if there is a threat of imminent harm.  If you have any questions regarding Domestic Violence please contact Attorney Keith F. Simpson to discuss your case at (310) 297-9090. You may also visit our website at http://www.simpsonlaw.net to arrange for a free initial consultation. The Law Offices of Keith F. Simpson, A Professional Corporation, is located in Manhattan Beach, California.

California Divorce Blog–Sole Custody

September 7, 2014

In cases involving children the Court may award a party either Sole Legal Custody, Sole Physical Custody or both.  Some people going through a divorce do not want the other parent to have any custody with the child. This may or may not be warranted depending on the circumstances.  In this article I will focus on the issue of Sole Legal Custody and Sole Physical Custody.

The major consideration in adjudicating contested custody is the child’s “best interest. However, the best interest determination is left largely to the trial court’s discretion. The trial court’s decision will be upheld on appeal so long as it reasonably can be concluded that the order advances the child’s best interest, consistent with Family Code Sections 3011 and 3020. (See Marriage of LaMusga (2004) 32 C4th 1072, 1087, 12 CR3d 356, 366; Marriage of Burgess (1996) 13 C4th 25, 31-32, 51 CR2d 444, 449—no abuse of discretion in awarding primary physical custody to move-away parent.
Sole physical custody: A parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent’s visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child. (See Family Code Section 3007 and Marriage of Burgess (1996) 13 C4th 25, 29, 51 CR2d 444, 447).
Sole legal custody: Conversely, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child’s health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child’s residence and supervision. (See Family Code Section 3006).
Typically, the Court will not order sole legal custody or sole physical custody unless a parent has abandoned the child or poses some risk of harm towards the child including but not limited to physical abuse, molestation, criminal activity or drug abuse. If you are seeking sole custody or the other parent is seeking a court order for sole custody please call Attorney Keith F. Simpson today to discuss your case at (310) 297-9090.  The Law Offices of Keith F. Simpson, A Professional Corporation, is located in Manhattan Beach, California.  You may also visit http://www.simpsonlaw.net to request a free initial consultation today.

California Divorce Blog–Vocational Examination

September 6, 2014

I find that a Vocational Examination is typically necessary in cases where one spouse is either unemployed or underemployed.  The reason is that it is difficult to otherwise produce evidence in court to impute income to the non-working spouse.  The purpose of imputing income to the non-working spouse is to attempt to reduce the working spouse’s monthly child support and/or spousal support obligation.

The fundamental purpose is to obtain an expert’s assessment of a spouse’s ability to obtain employment based upon his or her age, health, education, marketable skills, employment history and the current availability of employment opportunities. To that end, the examination is supposed to focus on an assessment of the party’s ability to obtain the type of employment that would allow the party to maintain herself or himself at the marital standard of living. (See Family Code Section 4331(a)).

Vocational examination results showing the supported spouse is capable of being employed at any income level—albeit below the marital standard of living—are also clearly relevant (e.g., may indicate a step-downorder is appropriate). [See Marriage of Schmir (2005) 134 CA4th 43, 53, 35 CR3d 716, 723—vocational examiner’s testimony supported imputing $2,500/mo. income to obligee spouse].

If you find that your spouse is either unemployed or underemployed, you may want to consider a vocational examination. To further discuss your case please call Attorney Keith F. Simpson today at (310) 297-9090.  Keith F. Simpson is a Family Law Attorney in Manhattan Beach, California. You may also contact Attorney Simpson at http://www.simpsonlaw.net for your free consultation.


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