Archive for September, 2014

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.

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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.

California Divorce Blog–Deferred Income or Diverted Income for Debt Repayment

September 5, 2014

Sometimes parties divert income or defer income to repay debts owed and therefore claim that the diverted income should not be counted as “Income” for support purposes.  California Courts have held that diverted income is typically to be counted as “Income” for support purposes.

A parent’s voluntary debt repayment, effectively diverting funds from income, may be added back into his or her “annual gross income” calculation. Generally, the law does not permit a “voluntary diversion of income to pay debt, resulting in deprivation of funds for child support.” (See Marriage of Kirk (1990) 217, CA3d 597, 606-608, 266 CR 76, 81-82.   (H voluntarily agreed to reduction in salary to reflect automatic payback of funds borrowed from employer corporation: trial court erred in not considering diverted funds as H’sincome; see also Marriage of Pearlstein (2006) 137 CA4th 1361, 1376, 40 CR3d 910, 922).

The Court may treat income diverted for the “Necessities of Life” differently. However, if a party is diverting income for garden variety debts then the court will likely qualify the diverted funds as “Income” and therefore include such money as income for purposes of calculating support.

Please contact Attorney Keith F. Simpson today to discuss your legal matter at (310) 297-9090.  Keith F. Simpson is an experienced Manhattan Beach Divorce Lawyer. For further information you may also review the website at http://www.simpsonlaw.net or call for your free initial consultation today.

California Divorce Blog–Temporary Spousal Support

September 4, 2014
Typically, when a divorce case is initially filed a party who earns less than the other party may seek an order for Temporary Spousal Support. This is also called “Pendente Lite” Spousal Support.  Generally, the working spouse pays the non-working spouse temporary spousal support while the action is pending.
During the pendency of a dissolution or legal separation proceeding, the court “may order” one party to pay “any amount that is necessary” for the other’s support consistent with the requirements of per California Family Code Section 4320, 4325.  However, in the Marriage of Freitas, the Court was required to consider the parties’ domestic violence history such as criminal convictions which could reduce or eliminate spousal support awards.  (See Marriage of Freitas (2012) 209 CA4th 1059, 1067, 147 CR3d 453, 459-460.
Until entry of the final judgment, temporary spousal support is properly awardable without regard to the merits or procedural posture of the case. (See the Marriage of Askmo (2000) 85 CA4th, 1032, 1038-1040, 102 CR2d 662, 666-667. In the Askmo case, the court ruled there was no error in awarding the Wife support before her default was vacated and pending Husband’s appeal from set-aside of a default judgment.
If you are the spouse who does not work or earns less than your other spouse then you may want to consider seeking temporary court orders for spousal support. Also, if your spouse is seeking Temporary Spousal Support from you then you should seek an immediate consultation to discuss limiting your exposure to paying spousal support.  For a more in depth analysis please call Attorney Keith F. Simpson at (310) 297-9090 to further discuss your case. You may also review our website at http://www.simpsonlaw.net for your free initial consultation today.

California Divorce Blog–Vested and Unvested Retirement Plans and Pensions

September 2, 2014

Many people are confused regarding the division of retirement plans including Pensions, 401k plans, IRA accounts and other such plans. We start with the proposition that generally speaking, all property acquired during marriage is Community Property and to be divided 50/50. Exceptions to this rule include gifts, inheritance and other types of property. A community property interest may only be acquired during marriage and before separation. [Fam.C. §§ 760, 771(a) & 772] Concomitantly, a spouse’s community property interest arises at the time the property is acquired; it is not affected by a change in the form of the property and may be altered only by judicial decree or joint action between the parties. [Marriage of Rossin (2009) 172 CA4th 725, 732, 91 CR3d 427, 432; Marriage of Moore & Ferrie (1993) 14 CA4th 1472, 1478, 18 CR2d 543, 546].

The California Courts have held that employment benefits provided to an employee or promised to an employee at a future date is considered to be community property and therefore divisible 50/50. Other employment fringe benefits based on a contract right to future benefits after separation (even though unvested and unmatured): To the extent “earned” during marriage and before separation, these interests are allocatable to the community. [Marriage of Harrison (1986) 179 CA3d 1216, 1226, 225 CR 234, 239; see Marriage of Foley (2010) 189 CA4th 521, 527–528, 117 CR3d 162, 167 (contractual right to distribution of partnership profits based on prior year’s performance).

Regarding nonvested or non matured benefits, subject to the court’s sound discretion, either cash-out or inkind division can be made for nonvested or nonmatured benefits. [Marriage of Bergman (1985) 168 CA3d 742, 214 CR 661]. First, there is the “Cash-out option”. Under a cash-out division, the total benefits are awarded to the pensioner spouse and the nonemployee spouse is given offsetting assets equal to the present actuarial value of the CP interest in the pension. (This actuarial value includes reductions for shortened life expectancy in nonvested cases and for the possibility the employee spouse might leave the employment before the pension vests.) [Marriage of Bergman, supra; Marriage of Kasper (1978) 83 CA3d 388, 147 CR 821; Marriage of Brown (1976) 15 C3d 838, 126 CR 633]

Second, there is the “Equality of division” method. Arguably, this method could result in a substantially unequal division, since the pensioner spouse might die before the pension vests or, even after vesting and maturity, before payments on the full actuarial value are realized: i.e., the cash-out places all risk of future receipt of benefits on the employee spouse.
Even so, subject to a fair consideration of all the facts involved, and a realistic actuarial valuation, this disposition is not an abuse of discretion. [Marriage of Bergman, supra].

The Brown Decision cited above is a California Supreme Court decision which is the highest Court in the State of California. Therefore, one can argue that this decision carries substantial weight and is persuasive on this issue.

Please contact Attorney Keith F. Simpson today to discuss your family law matter at (310) 297-9090. Attorney Simpson is located in Manhattan Beach, California. You may also review our website at http://www.simpsonlaw.net for a free consultation today.