Author Archives: FordFamilyLaw

Child Support

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

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?

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

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.

 

Haircuts?

The actress Halle Berry took her ex husband to court for straightening their daughter’s hair without her consent.  The news article is located here.

Leaving aside any racial component, a child’s appearance falls under “legal custody”.  As noted previously, certain decisions require joint agreement, and if the parties cannot reach an agreement, the Court may be called in to make a decision.  The Court (or the parties) can also craft “joint legal custody” orders to specify what actions require joint agreement and which do not.

For example, a joint legal custody order may require that parents agree to all non-emergency decisions about a child.  The parties may also agree that one party may be “in charge” of educational decisions while the other party is “in charge” of selecting the child’s doctor.  The Courts provide a template for different types of joint legal custody orders.  Parents are free to divide the responsibilities as they wish assuming the child’s best interest is basis for that division.

If you have questions about joint legal custody provisions, be sure to speak to an experienced family law attorney.

The Petition – Part 7 (a), (b), and (c) – Custody & Visitation

In a dissolution proceeding, the Court has jurisdiction (or power) to make custody and visitation orders.

Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Fam. Code § 3003.

Joint physical custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020. Fam. Code § 3004.

Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Fam. Code § 3006.

Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Fam. Code § 3007.

Does “joint legal custody” require agreement on every single parenting decision?  In short (and as was likely true in the marriage), no.  The parent with the current physical custody of the child (in other words, the child the parent is with) can make the every day decisions for the child.  Emergency care?  Yes.  Switching schools?  No.  Pierced ears?  No.  The latter decisions require joint agreement, and if the parties cannot reach an agreement, the Court may be called in to make a decision.  The Court (or the parties) can also craft “joint legal custody” orders to specify what actions require joint agreement and which do not.

Visitation can also be described as the timeshare, or the time the child spends with each parent.  The timeshare could be a week-on/week-off, alternating weekends, 2/2/3, or 2/2/5 schedule.  The timeshare depends on the parties and what is in the best interest of the children.  Different schedules may be appropriate depending on the age of the children.  Sample calendars of difference timeshare schedules are located here.

Most Courts will advise parties that it is best for parties, and the children, to have the parents reach an agreement on the custody and visitation schedule.  If the parties cannot do so between themselves or with the help of mediation, the Court will make a decision focusing on frequent and continuing contact with both parents and the best interests of the children.

If you have questions about custody and/or visitation, talk to an experienced family law attorney.

Property Division – 1 Billion Dollars?!

In Oklahoma this week, a court ordered a husband to pay approximately $1,000,000,000 in “property division alimony” to his former wife.  Click here or here for the complete story.  While California does not have “property division alimony,” the case provides a good starting point with regard to property division and the valuation of party’s services to a community property business.

In an earlier post, the blog discussed community property and how it is divided equally at dissolution. Before dividing the asset, the court needs to how to value it.  In the Oklahoma case, one of the questions was how to value the community interest in an energy business started by Husband.  Husband’s argument was that the business took off because of the inherent nature of the business.  Wife countered that he made his millions because of his business skill and acumen.

In California, Husband’s tact would be known as the Van Camp approach; Wife would argue for a Pereira approach.  In general, a party argues for the Van Camp approach when it is the initial investment and not the personal efforts that grew the asset while the Pereira approach would focus on the personal efforts of a party driving the growth of a particular asset or property.  Pereira tends to favors the community while Van Camp favors the initial separate property interest (attributing the growth to that party’s separate property).

The Oklahoma case appears to have rewarded the community and based the company’s growth on the husband’s “skills and efforts” and less on luck and the increase in oil prices.  If you are facing a dissolution and either you or your spouse run a small (or extremely large!) business, be sure to talk to an experienced family law attorney to determine the best and most favorable approach to valuing that business prior to the division of community property.

Beware Social Media!

A recent Doonesbury cartoon should remind all family law parties to watch what they post to their Facebook page.

While the comic focuses on potential adultery (not a specific ground for dissolution in California), Facebook and other social media posts can potentially impact support and custody/visitation decisions.  For example:

  • Support:  If a party claiming the need for support simultaneously posts photos and status updates about their expensive vacation to Europe, you can expect the opposing party to raise this issue as an argument against support.
  • Custody/Visitation:  If a party claims that he is the best (and only) person to care for the parties’ child, and photos surface of the child holding a Solo red cup; the other parent may use this information to let the court know about the parent’s “relaxed” parenting style.

In short, if one does not want information before the Court, don’t post it to social media.  Don’t rely on your privacy and security settings.  Keep your dissolution and opinions about the other party to yourself and share only with your attorney.

Surrogacy

Surrogacy is defined as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children” (Merriam-Webster).  Laws vary state to state as noted in this recent New York Times article.

In California, surrogacy is lawful (and regulated).  The Family Code speaks about it here.  In short, the parties enter into a contract whereby a woman will become pregnant via in vitro fertilization and birth a child that is not intended to be her own (nor is she genetically related to the child).  She may enter into the contract with a married couple, those in a domestic partnership, or a single person.  The contract needs to clearly spell out the terms including, but not limited to: the persons from which the egg and sperm came (unless anonymously donated) and the identity of the intended parent(s).

Be sure to speak to an experienced reproductive rights attorney before signing a surrogacy contract.

 

 

Constitution Day – 2014

Family law is usually considered a state law issue – removed from federal and constitutional issues.  However, gay marriage and even grandparent visitation rights are two family law issues impacted by the U.S. Constitution.  Is there a constitutional right to gay marriage?  Can a parent deny visitation to a grandparent?  The Constitution has an answer.

This blog previously addressed constitutional/family law issues here.  Grandparent rights and the right to raise your child are discussed in Troxel v. Granville (2000) 530 U.S. 57 (“liberty interest [as defined in the 14th Amendment] at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Happy Constitution Day!