Author Archives: FordFamilyLaw

CA Appellate Court Caps Bonus Spousal Support Payment Based on Change of Circumstances and Reasonable Expectations of Parties

January 30th, 2019

Usually, a person who has been ordered to pay spousal support does not run to court seeking a reduction in support after she or he has just received a large raise — the risk being the court could order an increase in support because of the increase in the payor’s income. But in the recent case of T.C. V. D.C. a wife who was paying support to her former husband sought a court ordered reduction in spousal support after she landed a new job with much greater earnings.

Wife’s Salary Skyrockets and She Wants the Court to Reduce the Amount of Support She Must Pay?

Why would the high earning wife take this risk? Wife took this risk because she was paying her ex-husband a base support payment every month tied to her base salary, plus she was paying her ex-husband a percentage of all income that exceeded her base income — and, unfortunately for Wife, the parties’ Marital Settlement Agreement had no cap on the amount of bonus support that she paid to Husband. Think about it: Originally, Wife was paying base support to Husband of less than $1,000 plus she was paying him 10% of her excess/bonus income. At the time of the Marital Settlement Agreement, Wife’s projected “excess” annual earnings (i.e. her annual bonuses) totaled $9,900, meaning Husband would receive an additional $990 annually as an additional “bonus support” payment. Wife agreed to pay this bonus amount even though Husband acknowledged in the Marital Settlement Agreement that the BASE amount of support met his needs and his expenses at the time of the divorce were reflective of the parties’ marital standard of living. Therefore, the bonus payment was gravy as it exceeded his needs as well as the marital standard of living.

Fast forwarded a couple of years later, Wife found a great new job and her “excess earnings” were dramatically higher — $250,000 higher than before! Translation: Per the terms of the Marital Settlement Agreement, Wife’s annual bonus support payment went from $990 to $25,000!

When the Wife filed her request to reduce her support payment, Husband argued that per the terms of their Marital Settlement Agreement wife could not escape the 10% bonus payment no matter how high Wife’s excess earnings were. In layperson’s terms, Husband argued “a deal is a deal.” In legal terms, Husband argued, that there was “no change in circumstance” because at the time the parties reached their original support agreement there was an expectation that Wife’s earnings would increase.

At trial, the court found in favor of Wife. The trial court found that there was a change in circumstance and the trial court then capped the bonus payment to $990/year as that was the bonus amount Wife paid at the time of the Marital Settlement Agreement.

Husband appealed, and the appellate court agreed with the trial court that there was a change in circumstance which warranted a modification of Wife’s support obligation. The court reasoned that although at the time the parties entered into their original agreement they had contemplated an increase in Wife’s earnings, they had not contemplated such a dramatic increase in Wife’s earnings. Huge win for Wife, right? Not so fast. The appellate court went on to state that the $990 annual cap was inappropriate because the Marital Settlement Agreement stated that the base amount of support paid met husband’s needs and the parties’ standard of living. Therefore, the parties had agreed to a support payment that exceeded the parties’ marital standard of living by inclusion of the bonus provision.

Why Bonus Provisions in Marital Settlement Agreements Should Always Include Caps from the Payor’s Perspective

Generally, the payor of support wants their Marital Settlement Agreements to include a statement that the support paid meets the supported parties’ needs and the parties’ marital standard of living. Establishing the marital standard of living and husband’s needs is good practice as those agreed upon facts generally limit a supported spouse’s ability to seek a significant increase of support in the future. Fortunately for Wife, the Marital Settlement Agreement in T.C. v. D.C. included such a provision. But in this case, the problem was not the marital standard of living, it was the gravy – Wife’s agreement to pay bonus support meant she was willing to pay husband support that exceeded the parties’ marital standard of living. Therefore, when drafting Marital Settlement Agreements, if there is a bonus support provision, the support payor should insist to a cap on the amount of bonus support paid.

Ultimately, the net result of T.C. V. D.C. is Husband was not capped at the original $990 annual bonus, but the court can establish some reasonable cap, based on the parties’ expectations at the time they entered their marital settlement agreement.

California Court Ruling Supports Biological Father’s Standing as Third Parent

December 5th, 2018

In C.A. v. C.P. et al., the Third Appellate District recognized the parental rights of a child’s mother, husband parent and biological father (C.A.). The child was born into an intact marriage after mother had a short relationship with C.A. All parties were aware of the child’s paternity, acknowledged C.A. as the biological father, and were actively involved in the child’s life from birth until she was three. During that time, C.A. had regular overnights with the child, held her out as his own, accepted her into his family, and supported her financially. This action arose when mother and husband refused to allow C.A. to continue visiting with the child.

Under the holding in C.A. v. C.P. et al., the Court determined that both C.A. and husband qualified as fathers of the child: C.A. as a presumed natural parent pursuant to Family Code Section 7611(d) and husband under Family Code Section 7540. C.A. fulfilled the requirements to be considered a presumed natural parent by receiving the child into his home and holding her out as his natural child, which both wife and husband cooperated with. Husband was conclusively presumed a natural parent because he was married to and living with wife at the time of the child’s birth.

Once acknowledging the standing of both men’s paternity, the Court looked to Family Code Section 7512(c), which allows recognition of more than two parents if only recognizing two parents would be detrimental to the child. In their analysis, the Court referenced the statement of legislative intent accompanying Family Code Section 7512:

“(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.

(b) The purpose of the bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances.

(c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents.” Sen. Bill No. 274 (2013-2014 Reg. Sess.).

In their findings, the Court highlighted the long-standing bond that the child had with C.A. and his deep involvement in many aspects her early life. The key inquiry was if C.A. had an extant relationship with the child and if removal of this relationship would be in contradiction of the child’s best interest, specifically her need for stability. Finally, the Court held that their recognition of three legal parents did not violate Constitutional protections of marriage and paternal rights.

C.A. v. C.P. et al., provides a roadmap for parents that may be involved in future three party custody cases. Once standing is established through a valid claim of paternity, the Court will examine the extent of the claimant parent’s involvement in the child’s life and determine if it is in the best interest of the child to maintain that bond through a legally recognized relationship. The more consistently involved the claimant parent is, the more likely they are to be recognized as a legal parent. This serves as both instructive for possible biological fathers wishing to assert their parental rights and as a cautionary tale for married parents of a child with a third party biological parent.

Custody Evaluations and proposed legislation re People v. Sanchez (2016) 63 Cal. 4th 665

March 26th, 2018

People v. Sanchez represents a potentially significant evidentiary problem in the context of custody and visitation cases involving a custody evaluation and report.

Under the holding in Sanchez, which is a criminal law case, case-specific, out-of-court statements that are relied upon by an expert to form his or her opinion are considered hearsay and are inadmissible and excluded from the record unless a hearsay exception applies.  Custody Evaluators, and to a lesser extent Recommending Mediators, gather collateral testimony and documents and rely on such materials in their reports to formulate their opinions regarding custody and visitation.  Unless the parties stipulate to the admissibility of the Custody Evaluator’s report as a whole, any collateral evidence that may have supported the Custody Evaluator’s conclusions could potentially be excluded under Sanchez.  What’s more, if the Custody Evaluator’s findings relied primarily on excludable hearsay, there’s a possibility that the report and recommendations might be excluded.

To date, this concern over whether and to what extent Sanchez applies to custody evaluations remains somewhat theoretical.  The issue has not yet made its way through the appeals process and some experts in our field predict it never will due to the statutorily-sanctioned, investigative-nature of custody evaluations.  Nonetheless, amongst family law attorneys, the holding in Sanchez has created uncertainty as to whether a custody evaluation and its underlying evidence will or will not be excluded.  This uncertainty  often leads to litigation, and with it, the associated drain on both private and public resources.

Senate Bill 1276, which could come up for a vote later this year, proposes revisions to California Evidence Code §§ 801-803 is designed to address the above problem (and similar ones from the broader context of civil litigation).  The most significant changes are found within the text of § 801 of the Code.

The current language of Evidence Code § 801 code is as follows:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

Under the proposed legislation, the following section would be added to the above language found Evidence Code § 801 (along with some additional relatively minor changes):

(b) In civil proceedings, evidence of a statement used to support the opinion of an expert is not made inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable. In determining the reliability of a statement, a court shall consider the following:

(1) Whether, the expert routinely relies upon similar statements in his or her professional capacity outside of the court.

(2) The expertise of the expert, including his or her experience, in evaluating the trustworthiness of the sources of information relied upon in forming his or her opinions.

The new Code creates an exception to hearsay that the Court has the discretion to apply in civil cases only, looking at two factors: (1) whether the information considered by the Expert is considered routinely; and (2) whether the Expert has the experience to evaluate the trustworthiness of the sources of information.  In the context of custody evaluations, the Evaluators routinely rely on collateral sources of information for their reports – such as documents, testimonials, interviews, etc. Custody Evaluators also have the experience and clinical expertise needed to sufficiently investigate the matter and to apply the proper weight and significance to the facts gathered by them. For example, Evaluators rarely rely on a particular collateral source without assessing the information obtained from one such source in relation to other data and information.  Therefore, it seems likely that the case-specific, out-of-court statements often relied on by Custody Evaluators — which may be considered hearsay in other contexts — will not be excluded as such under SB 1276’s proposed revisions to the Evidentiary Code.

Sanchez seems to make sense in the criminal law arena, where the individual rights that are at stake may require the highest due process protections and a more strict application of the hearsay rules. SB 1276 is designed to eliminate the uncertainty created by Sanchez in the context of civil matters that often rely on expert testimony, such as in the custody evaluation context.  For many family law practitioners in particular, the above distinction between criminal and civil practice under the new proposed code is a welcome change.  Hopefully, SB 1276 will pass.

Mandatory Mediation in Custody Cases

January 29th, 2018

In California, mediation is mandatory whenever custody and visitation are at issue, and for good reason – custody mediation can have a very positive, long-term impact on families. See summary of Dr. Robert Emery’s 12-year study on the effects of divorce mediation at On the other hand, some have questioned the fairness of mandatory mediation in custody cases in California. See, e.g., Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991). Regardless, there is a fairly wide consensus within the field of mediation that the benefits derived from mediation and the fairness of the mediation process itself depend on how the mediation process is being offered.

In light of the mandatory mediation requirement, two types of mediation are offered through the California court system: (1) recommending mediation/counseling; and (2) confidential mediation. Compare Cal. Fam. Code Sections 3183 and 3188. Each County in California may select the type of mediation that parties to a custody dispute must attend.
Under the recommending mediation approach (formally titled “recommending counseling”), the mediator first tries to help the parties reach a consensual agreement. If the parties cannot do so, the mediator then provides the parties and the court with non-confidential recommendations regarding custody and visitation. The parties can agree to adopt the recommendations, or the court may decide to adopt or modify the recommendations after hearing the parties’ arguments for and against adoption. For reasons that are fairly apparent, the non-confidential recommendations can have a significant impact on how parties negotiate and/or how the court rules. One of the advantages of the recommending approach is that the parties have the opportunity to meet with a psychologist or therapist trained to deal with families who can first try to help them in a more consensual process but can then also make a recommending to the court based on his or her professional expertise. One potential disadvantage of the recommendation approach is that parties often approach recommending mediation as a process within which they advocate their position to the mediator rather than try to candidly communicate with one another and problem-solve. As a result, the potential of reaching a consensual agreement is often diminished.

In contrast, under the confidential mediation approach, neither the mediator nor the parties can report the content of the mediation to the court other than reporting any actual agreement reached. This approach allows parties to have more frank conversations with the help of the mediator without worrying about the impact their conversation may have on the outcome of their case. However, unlike the recommending approach, the only immediate, tangible by-product of a confidential mediation is when the parties do in fact reach an agreement. Although confidential mediation may very well pay dividends well beyond an immediate agreement, confidential mediation may be less efficient than recommending mediation, at least in the short-term.

Another way to look at the difference between these two approaches is that under the recommending approach, the goal is dual: (a) to try to help the parties reach their own agreement; but if they cannot agree, then (b) to provide the court with assistance/guidance by way of issuing a recommendation. Under the confidential approach, the only goal is to help the parties reach a consensual agreement via a confidential process.

Many Counties, including Alameda, have adopted the recommending mediation module. Others, like San Francisco County, provide confidential, non-recommending mediation. Contra Costa County has been a recommending mediation County for many years; however, recently the County announced a planned shift to a hybrid confidential/recommending module starting in March 2018. This hybrid approach involves a first tier of confidential mediation, a second tier of fact-gathering conducted by a different mediator, and a third tier of recommending mediation with the same mediator that conducted the second tier fact-gathering. Referrals to tiers two and three will be at the discretion of the Judge presiding over the case. The Contra Costa module, is designed to reap the benefits of confidential mediation and recommending mediation/counseling, but at different stages of the case.

One of the limitations of court-connected mediation services is the court’s lack of resources, which limits the amount of time dedicated to mediation. Parties do have the option to opt out of the court-connected services and stipulate to private mediation. Our office (which practices in Contra Costa and Alameda) often explores with our clients the option of working with a private recommending mediator/counselor or a private confidential mediator. While this service is not free, it does allow for a more thorough and holistic approach to resolving custody and visitation issues and often saves a fair amount in attorney’s fees.

To conclude, parties with disputes over custody need to understand that there are important choices to be made regarding the mediation process (as a stand-alone process or in conjunction with litigation), choices that can significantly impact how custody and visitation is determined. It is very important for attorneys and their clients to have a discussion about these various processes at the onset of the case.

Facebook = Service?

April 20th, 2015

In New York, a judge recently ruled that you can serve your spouse with divorce papers via Facebook.  The ruling is here.  (Please note that this ruling applies to one New York case, and it is not a binding rule regarding service in California.)

What is service?

Filing your dissolution (divorce) Summons and Petition only starts your case.  The other party must be served with the papers.

“Service” is getting your legal papers properly delivered to your spouse.  The other party needs to have appropriate notice so that his/her due process rights are protected.  The rules governing service are set forth in Code of Civil Procedure Sections 415.10-415.95.  These rules are set forth in simpler language at the Court’s Self-Help website.  Service can range from hand delivery to a notice posted on the courthouse wall.  What service is deemed appropriate depends on the case.

Personal service is preferred, but not always possible.  Service via Facebook (allowed in the referenced New York case) is a form of substituted service in that it “[n]ot only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”

If you are thinking of initiating a divorce proceedings, be sure to talk to an experienced family law attorney who can help determine how best to serve the initial pleadings.


So Long to Spousal Support?

April 7th, 2015

A California resident is attempting to place a ballot initiative on the November 2016 ballot that would significantly alter (eliminate?) spousal support in California.  The proposed ballot initiative can be found here.

Spousal support is governed by Family Code Section 4300 (et. seq.) and case law.  In short, “a person shall support the person’s spouse.”  Fam. Code § 4300.  Section 4320 sets forth the factors the court is to review when determining post-dissolution spousal support.  The proposed revision would have 4300 read:  “No party shall be unfairly burdened because the other party is unwilling to become self-supporting.”    The “new” 4320 would eliminate the spousal support factors as there would be no need for them without any legally authorized spousal support.

The ballot initiative, if passed, would a) immediately eliminate current spousal support orders less than 10 years in length and b) reduce by 20% per year for 5 years orders with a duration for greater than 10 years.   Spousal support is currently modifiable based on a change in circumstances, court order, or agreement by the parties.  The proposal appears to eliminate spousal support completely by 2021.

To become an official ballot initiative, certain steps must be followed.  Click here to learn more about that process.  If it obtains the necessary signatures, it still must win a vote at the polls.


Child Support

March 2nd, 2015

A child support order is just that – an order.  Once ordered, it is not optional.  However, $14.3 billion in child support remained unpaid in the United States in 2011.

Child support in California is determined by a mathematical formula which is set forth at Family Code Section 4055 (the “guideline” amount”).  In short, the Court looks at both parties’ incomes, the number of children, the amount of time the child(ren) spend with each parent, as well as the tax filing status and relevant and allowable deductible expenses.*

California parents can “run” the child support calculations here.

In addition:

  • The Court shall also order the following additional items:  childcare costs related to employment and reasonable uninsured health care costs for the children.  Fam. Code § 4062(a).
  • The Court may also order costs related to educational/special needs of the children and travel expenses for visitation.  Fam. Code § 4062(b).

*Non-guideline child support awards are governed by Family Code Section 4057 (subject of a later blog post).

If the other parent is not paying the court-ordered support, or if you are a parent who cannot afford to pay the court-ordered support, an experienced family law attorney can answer your questions and help identify potential solutions to your family law needs.

The Petition – Parts 7 (d), (e), (f)/(g), and (h); Part 8

January 20th, 2015

The Petition breakdown wraps up today.  The Judicial Council updated the Petition and Response as of January 1, 2015.  The information contained in the pre- and post-updated forms are (for the most part) the same.   However, in seeking to complete the task at hand (a walk-through of the Petition), the final components are briefly discussed below.

Part 7(d) (Parentage)

If a child is born after marriage, the child is considered of the marriage and the child of the two parents.  Fam. Code § 7541.  If a child is born prior to the marriage (to the parents), the Petitioner (or Respondent) can request that the court find the pre-marriage child a child of both parties.  This is in lieu of a separate parentage action.

Part 7(e) (attorney’s fees)

Payment of attorney’s fees in conjunction with a family law matter is governed by Family Code Sections 2030-2034.  The Court looks at a number of factors including the requesting party’s need and the other party’s ability to pay.  These are not the only factors, and the Court is also required to review the level of difficulty of the case as well as the spousal support factors (discussed below) as they relate to the payment of fees.

Parts 7(f), (g) (spousal support)

Temporary and long-term (or permanent) spousal support will be discussed in a separate blog post.  The Court is required to review a number of factors in determining post-judgment support.

Part 7(h) (property)

Previous blog posts described the difference between community property and separate property.  The Petitioner and Respondent can ask the Court to award community property to him/her and confirm his/her separate property to him/her.

 Part 8 (child support)

Child support will be addressed in a separate blog post.

Continue to check back to this blog for further information on support (child and spousal) as well as other news and updates as they relate to family law in California.

Staying Married?

January 8th, 2015

One might find it odd for a family law (aka divorce) blog to post a link to a study that highlights the positives of staying married.  But family law attorneys are not there to make someone get divorced; they are there to help guide a party through the process and advocate for a party only after the party has decided to proceed with the dissolution (divorce).

According to the New York Times article, the study concludes “that being married makes people happier and more satisfied with their lives than those who remain single – particularly during the most stressful periods, like midlife crises.”

If you can work out any potential “irreconcilable differences”, we encourage that.  If you don’t think you can, the family law courts and family law attorneys are available to assist.

Prenuptial Agreements

December 31st, 2014

Prenuptial Agreements are back in the news.

What is a prenuptial agreement (or “prenup” for short)?

A prenup is an agreement  between prospective spouses that sets forth the parties’ property rights and financial responsibilities at marriage.  A prenup can address any number of issues including, but not limited to, how property is acquired (community or separate) and how the parties will control or otherwise manage their property.  Fam. Code § 1612(a).  Parties may not exclude the payment any potential child support.  Fam. Code § 1612(b).

But – isn’t that unromantic to discuss such things before we marry?  Having an honest discussion about finances before the wedding day may save parties from problems down the road.  In fact, if you don’t have a prenup, the state of California provides you one with its community property system.

Here are some things to keep in mind:

  • Give yourself, your potential spouse, and your attorneys time to draft, review, and revise a prenup.  At a minimum – 7 days are required if a party is not represented.
  • It is encouraged to have both parties represented by independent counsel.

If you want to learn more about prenuptial agreements and terms to include, be sure to speak to an experienced family law attorney.