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.

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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.

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.

California Divorce Blog–Gambling Spouse and Community Property Reimbursement

June 14, 2014

From time to time I am presented with an issue where one spouse has gambled away a substantial portion of the community property assets.  I have researched the issue of Gambling with community property as it applies to Fiduciary Duties owed between spouses during marriage. Fair warning, this post involves more “Legalise” than my prior posts.

Cases discussing gambling issues in divorce proceedings and community property division are few and none discuss the issue in depth.   Basically, winnings gained with separate property are considered separate property. (In re Marriage of Wall (1972) 29 Cal.App.3d 76.) Likewise gambling winnings with community property are deemed community property, and also because gambling is not considered a game of skill, winnings from gambling with community property, even after separation, are deemed community property. (In re Marriage of Shelton (1981) 118 Cal.App.3d 811.)

However, gambling losses using community property assets without the consent of the spouse is considered a breach of one’s fiduciary duty to the other spouse.   Where gambling losses result in a debt obligation by the community estate, the court assigns to the gambling spouse the debt amount as a separate obligation. Where the gambling losses without consent involve the depletion of community property assets without incurring debt obligations, the conduct is deemed not beneficial to the community and require the gambling spouse to reimburse the non-gambling the one-half share of the losses with an offsetting share of the gambler’s share of community property assets. Because the gambling spouse often hides the activity from the other spouse and evidence of proof, the court can shift the burden of proof to the gambling spouse when the other makes a prima facie claim of breach of fiduciary duty.

Judicial treatment of gambling losses with community property assets without the consent of the other spouse rests upon the Family Code provisions that establish a mutual fiduciary duty as to any transaction involving community property assets.    Family Code §721 and Family Code §1100 in tandem define the fiduciary duties between spouses in a marriage over community property.

Section 721 of the Family Code mandates in the marriage relationship a fiduciary duty which requires the highest good faith and fair dealing as to each other’s interest, the same as that required in a non-marital business partnership. The duty entails not taking unfair advantage of the other, including providing access to transactional books, rendering of true and full information of all things relating to transactions involving community property, and accounting to the other any benefits derived from transactions involving community property where consent was not obtained. (In re the Marriage Of Simmons (2013) 215 Cal.App.4th 584, 590.)

The section incorporates certain provisions of the Corporations Code that echo the duties set forth in Section 721.   At one time these incorporated Corporations Code sections set forth in Section 721 required that a request for information or an inquiry be made regarding transactions as a prerequisite to a finding of breach of fiduciary duty against a partner.

Recent amendments to Family Code §721 along with revised Corporation Code references incorporated within removed the requirement that a prerequisite demand for information be made to establish breach of fiduciary duty against the other spouse.   In summary, an automatic duty of disclosure is now imposed on partners to furnish each other without demand “any information concerning the partnership’s business and affairs reasonably required for the proper exercise of the partner’s rights and duties….” In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1427.

However, the duties are limited to providing access, information and an accounting and are not all embracing of those contained in the Corporations Code such as duties and obligations of corporate officers or directors as in the corporate opportunity doctrine. (In re Marriage of Leni (2006) 144 Cal.App.4th 1087, 1092-1093.)

Within the marital relationship, Family Code §1100 provides that either spouse has the right to management and control of community personal property subject to defined restrictions, including gifting and disposing for less than fair and reasonable value without consent of the other party. Other restrictions include selling, conveying or encumbering property associated with the home dwelling and clothing of the spouse and children without consent as well as property used in a community business interest.   These duties run until the court orders the division of the community estate and requires the full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.

Family Code §1101 and Family Code §§2602 and 2625 set forth the remedies attending the breach of duties toward community property management and control.

Family Code §1101 states that a spouse may make a claim for breach of fiduciary duty where one spouse impairs the other spouse’s present undivided one-half interests in the community estate in a single transaction or in a series of transactions where there is a detrimental impact to that interest.  Specified remedies include accounting, determination of rights of ownership, adding the name of a spouse to title of the community property with some noted exceptions.   It provides that these remedies can be sought apart from a marital dissolution action but also in a separate civil action with a three year statute of limitations after discovery of breach. No time limitation is set within a marital separation or dissolution action.

The general remedy for a breach of fiduciary duty is one-half of the value of the undisclosed or transferred asset plus attorney fees and costs.  Subsection (h) of the statute provides a punitive remedy when the breach falls within the requirements under Civil Code 3294 where the conduct amounts to “fraud, oppression and malice” toward the other party. Under such circumstances, the court is empowered to award 100% of the undisclosed or transferred asset.

The remedy set forth in Family Code §2602 authorizes the court to award or offset against existing property, an amount determined to have been deliberately misappropriated by a party where the other party was not involved.  This would apply to the situation where a spouse gambled away significant cash assets of the marriage without consent of the other party. In this circumstance, no debt is created but community property is lost. If $100,000 in savings was gambled away by a spouse, the court could award $50,000 to the other spouse from the gambling spouse’s interest in other community property.

The remedy set forth in Family Code §2625 authorizes the court to assign as separate debt any obligation incurred by the spouse during marriage and before date of separation that were “not incurred for the benefit of the community.”

The main case dealing with gambling issues is In re Marriage of Cairo (1988) 204 Cal.App.3d 1255 where the court assigned a balance on a credit card to the husband who incurred the debt because of gambling.   The gambling and resulting debt was deemed to have not been incurred for the benefit of the community. Once characterized as a separate debt, it does not factor into the equal division of community property.

Please contact Attorney Keith Simpson today to discuss your important legal issue at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, are located in Manhattan Beach, California. You may also review our website at http://www.simpsonlaw.net for a free consultation.

 

California Divorce Blog–Japan ratifies Hague Convention

April 19, 2014

On April 1, 2014, Japan officially became a party to the Hague Convention on the Civil Aspects of International Child Abduction. This is cause for celebration because far too many children have been abducted and taken to Japan by the Japanese parent.  Hopefully, as the Japanese courts begin to grapple with Hague cases the Judges will gain experience and knowledge about the Hague Convention and return children to their home countries as required by the convention.

This is important progress but far from the safety net many assume.  Please note that the Convention has no retroactive effect, although some countries may voluntarily act. It usually takes a while for a country to fully train judges and comply with the treaty. It is pretty clear that Japan will construe defenses broadly where Domestic Violence is alleged.

In Japan, when there are allegations of Domestic Violence, typically the Dad is not allowed visitation. Japan uses the “clean break” approach to custody — consolidating all rights and power in one parent and allowing that parent to decide if there will be visits. Japanese fathers struggle to get any visitation. There are many other problems with Japanese custody law and practice. 

As a practical matter, there are no real-world remedies for the left-behind parent. If one parent remains in the US and the other parent moves with the child to Japan, the parent remaining in the US may never see his or her child again.
It is important that you contact an experienced attorney when dealing with Child Custody matters. Please contact Attorney Keith F. Simpson today at (310) 297-9090 to discuss your important legal issue!  Or visit http://www.simpsonlaw.net to e-mail Attorney Simpson.