Monthly Archives: April 2014

Lottery and Divorce

April 28th, 2014

An Indiana lottery winner was ordered to share some (but not half) of his lottery winnings with his spouse.  The parties had been living separate and apart for several years, but neither had filed for a legal separation or divorce.  Click here for the complete article.

This blog previously discussed what it means to live “separate and apart”.  According to the Indiana Court, during six years of separation, the Indiana couple “spoke only two or three times, never commingled assets, had separate bank accounts, and generally lived as single individuals.”  Had the parties lived in California, the lottery winner would have likely had a better chance of keeping the lottery winnings to himself (though he could have been ordered to pay support (depending on a number of other factors)).

In another lottery and divorce case from 2001, a California wife tried to hide the fact she won the lottery from her then husband.  He learned of the winnings after the divorce was finalized.  Needless to say, he returned to Court.  Because Wife intentionally withheld information regarding her winnings (in violation of her fiduciary duties owed to Husband), the Court ordered that ALL winnings be turned over to Husband.  In re Marriage of Rossi (2001) 90 Cal. App. 4th 34.

If you have a question about filing for divorce or disclosing assets, be sure to consult with an experienced family law attorney.

More on Adult Child Support

April 22nd, 2014

On March 5, this blog referenced a New Jersery adult child support case and a California parent’s responsibility (or lack thereof) to pay for a child’s college education.

As previously noted, parents are not responsible for their non-minor children unless the child is “incapacitated from earning a living and without sufficient means” (Fam. Code § 3910) or the parents otherwise agree (Fam. Code § 3587).

In a recent case (Drescher v. Gross, (4/11/14) 2 Civ B246494, Div 3), the Court ruled on what happens when parents agree to provide for their non-minor children (i.e. pay for college) but when college comes – one parent cannot (or will not) pay and asks the Court to modify their order.

With minor children, child support is modifiable – and the parties cannot contract out of this provision.  However, according to Drescher, if the parties agree to provide support (including paying for college) for their adult children, the parties MAY contractually agree to limit the court’s ability to modify support.  And the Court cannot then modify that adult child support order.

Thus, if you are considering an adult child support provision in your Marital Settlement Agreement, and you want that provision to be non-modifiable, be sure you speak to an experienced family law attorney to ensure your wishes are memorialized in your MSA.

 

The Petition – Part 3 – kids

April 11th, 2014

In a California dissolution, the Court will make custody and visitation orders regarding the minor children (to be discussed under Part 7(a) – (c).

Before it can make such orders, the Court must first determine if it has jurisdiction (the power or authority) to make such orders.

If you have minor children, you list them under Item 3.  The parties are also required to attach a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act – FL-105 (“UCCJEA).

The UCCJEA determines where the custody/visitation matter should be heard.  For instance, if the parties and children live in California (and have lived in California their whole lives), the Court can make orders.  But what if a party moved to California in the last month and recently filed her Petition?  The other party can argue (and will likely succeed)  that with regard to custody/visitation, the matter should be heard in the state from which the children moved.  That does not mean that the Petitioner cannot obtain a legal separation (or dissolution) in California; it just means that the custody/visitation component may be heard in another state.

Item 3(d) deals with children born to the parties before marriage.  Children born to married couple are presumed to be the legal children of those parents.  Fam. Code § 7540.  It becomes a little more complicated if the parties were not married when the child was born.  (Click here for Quick Guide to California Parentage Law.)  However, the Court can still find that the parties are the parents of the child and make custody/visitation orders.

Before filing your Petition and the concurrent UCCJEA Declaration, be sure to talk to an experienced family law attorney to learn about your rights.