Posts Tagged ‘Torrance Divorce’

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.
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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–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.

California Divorce Blog (Divorce Options)

September 17, 2010

Welcome to the first blog posting from attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation.  Today I am going to write about options available to a person who has decided to file for divorce (also known as marital dissolution).

In California, a person has the option of filing a petition with the Superior Court of California for 1) Marital Dissolution (Divorce) 2) Legal Separation or 3) Nullity.

In California, a person may obtain a judgment of Marital Dissolution or Legal Separation on the following grounds: (a) Irreconcilable differences that have caused the irremediable breakdown of the marriage; or (b) incurable insanity.  The vast majority of parties filing for divorce choose the former “Irreconcilable differences” as the alleged reason for filing for a judgment of Marital Dissolution.  The Court typically makes a finding to the effect that the Irreconcilable differences have led to the “irremediable” breakdown of the marriage.  In my experience Courts tend to liberally construe the term “irremediable” breakdown of the marriage and order a judgment of Marital Dissolution so long as it appears that their is no possibility of reconciliation.

You should be aware that California has a residency requirement which must be satisfied prior to a Court entering a judgment for marital dissolution.  At least one party must have been a resident in the State of California for six months and a resident in the County where the lawsuit was filed for at least three months prior to the Petition being filed with the Court.  In the event neither party can satisfy this residency requirement, the parties may file for a Legal Separation and later (presumably six months) amend the Petition to a filing for Divorce. This will allow a couple who recently moved to California to proceed with filing the lawsuit and obtaining a Divorce Judgment as soon as possible (6 months).

A Legal Separation, unlike Divorce, does require the consent of both parties (unless the respondent does not appear and a default is entered against the respondent).  Also, a judgment of Legal Separation does not terminate the parties’ marital status.  This will allow a spouse to remain on the other spouse’s health care insurance plan.  If a party obtains a Divorce, the other spouse is precluded from remaining on the other spouse’s health care plan. This is a very important consideration which all parties should consider prior to requesting judgment for Divorce.

Nullity is a completely different concept.  A judgment of Nullity may only be granted by a Court when a marriage is void or voidable for the following reasons: (a) incest (b) bigamy (c) a spouse was not an adult when married (d) spouse was erroneously thought to be deceased (e) fraud (f) unsound mind (g) force (h) physical incapacity.  There is no statutory residency requirement to file a petition for a Judgment of Nullity.  There is also no consent requirement between the parties.  Finally, a Judgment of Nullity acts to nullify the marriage (as if the marriage never occurred).

Thank you for reading my first blog entry.  Please do not hesitate to contact Attorney Keith F. Simpson to further discuss any family law questions you may have at (310) 297-9090. Please also view our website at http://www.simpsonlaw.net or http://www.califdivorce.info