The Petition – Part 5 – Community Property

At Part 5 of the Petition, the Petitioner can identify his or her separate property.  Community property is:

Community property is subject to equal division by the Court.  Family Code Section 2550.

If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.

The Petition – Part 4 – Separate Property

At Part 4 of the Petition, the Petitioner can identify his or her separate property.  Separate property is:

  1. All property owned by the person before marriage.
  2. All property acquired by the person after marriage by gift, bequest, devise, or descent.
  3. The rents, issues, and profits of the property described in this section.  Family Code Section 770(a);  and
  4. The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse. Family Code Section 771(a).

You can ask the Court to confirm your separate property to you (and the Respondent’s separate property to him/her).  Separate property is not subject to equal division as is community property (see next post).  However, your separate property will be considered if long-term spousal support is an issue.  Family Code Section 4320(e).

If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.

Lottery and Divorce

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

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

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.

Child Support – above guideline?

In Washington, DC, parents are in court disputing the appropriate amount of child support to be paid for the parties’ two children.  It gets press (here at the Washington Post) because of the money involved (millions) and because the father, Peter Orszag, is a former Clinton and Obama administration official.

In California, parents usually pay child support based on their incomes, the amount of time each spends with the child, and other relevant factors (including, but not limited to, allowable deductions for property taxes, mortgage interest, and union dues).  The information is run through a calculation which produces the guideline amount.  The formula can be found at Family Code Section 4055.  You can run the numbers (your numbers) here.

The guideline number is presumed to be correct.  However, what happens when the payor parent has an extraordinarily high income?  Family Code Section 4057(b)(3) provides that this is a situation when the Court may deviate from the guideline amount.  The burden is on the high-earner to show that the guideline amount is inappropriate because it exceeds the child’s needs.  The Code fails to define a child’s reasonable needs.

The payor parent may wish to show that the child (children) does not need $30,000 per month to meet his needs (assuming that is the guideline amount).  The payee parent, on the other hand, would contend the guideline amount is reasonable to be sure the child is not transitioning between two vastly disparate home environments (an extreme example: a 1 bedroom apartment to an 8000 square foot single family home).

Before agreeing to any child support order or going to court to establish or modify an order, be sure to speak to an experienced family law attorney who can explain guideline child support and the whens and whys of deviating from the guideline.

Supreme Court Family Law Decision

On December 11, 2013, this blog discussed Lozano v. Alvarez , an international family law case at the Supreme Court.  The Court issued its unanimous decision today.

The Court ruled that the Hague convention’s one-year requirement to file a claim is not equitably tolled (i.e.paused) even if the removing parent  has hidden the child from the non-removing parent.

The case does not decide which parent will get custody of the minor child – that is left to the trial court.  The decision does, however, mean that the mother who left England and moved to New York will be more likely to have her case heard in New York as opposed to England.  (Other provisions in the Hague treaty may suggest that England is the more appropriate forum.)

For additional insight on this decision, please read Scotusblog.

In any international custody case, be sure to speak to an experienced family law and Hague proficient attorney.

(ALL!) NJ Parents Breathe a Sigh of Relief

New Jersey parents can sleep a little easier tonight knowing that one of their own won’t have to pay for their over-18-child-who-would-not-listen-yet sued-them-in-court-for-child-support youngster.  The full story is here.

In California, both parents are responsible for the support of their minor children.  Fam. Code § 3900.  The duty to provide support  “continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.”  Fam. Code § 3901.  However, if the child is incapacitated, support may extend beyond the child’s minority.  Fam. Code § 3910.

Divorcing parents can include in their Marital Settlement Agreement a provision to provide for their children’s college expenses (i.e. division of costs and a list of what constitutes college expenses).  If the parties cannot agree, the Court cannot order one parent to pay for college expenses pursuant to the code sections listed above.

If you have a question about child support or the payment of college expenses, please talk to an experienced family law attorney.