In a recent unpublished opinion on November 21, 2011, the Court of Appeal ruled that parties may agree to provide for child support through the transfer of real property so long as the court retains jurisdiction to modify child support upon a showing of changed circumstances.

In the Gonsalez case, Husband executed three “quiclaim” deeds (also called Interspousal Transfer Deeds in divorce cases) in favor of Wife of property the parents acquired during their marriage in exchange for Wife’s agreement not to seek child and spousal support.  Thereafter, Husband left California and didn’t pay any child support to Wife for six years. 

In 2006, Wife obtained a default judgment and obtained a divorce from Husband.  The court reserved jurisdiction to award child support.  In 2007, Husband filed a motion seeking a court order setting aside the three quitclaim deeds that he signed.  The court denied his request, citing the finding that Husband knew exactly what he was signing and he understood what he was signing.  Husband also intended to transfer his interest to Wife and did so specifically in consideration of the agreement that Wife would not seek support from Husband.

The Court explained that it is not unheard of that parents would exchange property for future child support payments.  Parents are permitted to make agreements for child support.  (Family Code 3580).  Since the trial court retained jurisdiction to award child support in the future if there were any changed circumstances, the default judgment was proper.  Additionally, Wife had not sought any support from Husband so it was not an illusory agreement.  Further, the court lost the jurisdiction to retroactively modify child support to an earlier date because child support had been set (to zero).  (Family Code 3651).

Child support agreements can be crafted in a variety of creative ways.  Notwithstanding an agreement outside of court, the trial court in every case must order the “guideline” amount of child support.  Our attorneys have extensive experience in negotiating and drafting child support agreements.  We are ready and available to speak with you today regarding your child support matter.  Feel free to call or email us today.

Our office is easily accessible to all areas of Orange County, including Costa Mesa, Irvine, and Newport Beach

Did you know that your community property may be liable for the debts of your spouse, even if that debt was incurred before marriage?

Imagine a situation where Husband brings student loan debt into his marriage with Wife.  During the marriage, Wife is under the impression that Husband had paid off the student loans because he wasn’t paying on the loans any longer.  However, rather than pay off his student loans, Husband had just stopped paying and the student loan debt went into default.  Let’s also assume that Wife is the only one working during the marriage, and the Husband stays home during the day to play video games and golf.  (You can imagine this scenario using any kind of debt, including small business debt, car loan debt, promissory note debt, credit card debt, and so on.) 

Soon after Husband stops paying on his student loans, collection agencies begin calling.  Wife is shocked to learn that Husband simply stopped paying on his student loans.  Now, she is wondering whether she is responsible to repay her Husband’s student loans from the joint, community property that she owns with Husband.  Since she has been the one primarily funding the parties’ joint accounts through her employment, she doesn’t think it would be fair that she, through the community, should be responsible for Husband’s premarital, separate property obligations.

The question is whether Wife, and the community, may be subject to liability for Husband’s separate debts:  And the short answer is yes.  The rule that the community is responsible for one spouse’s separate debt applies regardless of which spouse has management and control of the property or whether one or both spouses are parties to the debt or to a judgment for the debt. (Family Code § 910(a) & (b); Lezine v. Security Pac. Fin’l Services, Inc. (1996) 14 C4th 56, 64, 58 CR2d 76, 80).  Community estate liability under § 910 is not limited to debts incurred for the benefit of the community, and the community’s liability may even extend to debts incurred by one spouse exclusively for his or her personal benefit (although the “innocent” spouse may have a reimbursement claim).  (See Levine).  Even assets like pension plans are available to a judgment creditor to levy, including the IRS, for a spouse’s separate property debts.  (See In re McIntyre (9th Cir. 2000) 222 F3d 655, 658 (applying Calif. law); see also Ordlock v. Commr. (9th Cir. 2008) 533 F3d 1136, 1138–1139—because the community is liable under Family Code 910 for Husband’s income tax debts incurred during marriage, Wife not entitled to refund of community property payments made even though she claimed “innocent spouse” status).  The community has even been held responsible to pay restitution for Husband’s wrongful acts in a criminal case!

So how do you protect yourself from your spouse’s separate debts?  First, it may be wife to hire an attorney before you get married to draft and execute a premarital agreement.  You can create a document that outlines your spouse’s liability for his separate debt and also states that the community is not liable.  If all the appropriate precautions are taken and the agreement is executed properly, and then recorded, you may limit your liability.  Second, you can hire an attorney to create a post-marital agreement.  Third, you can file for divorce or legal separation. 

Feel free to contact our office today by telephone or email to set up your free consultation with one of our outstanding attorneys.  We will be happy to explain your options to you in a language that is simple and will make sense to you.

The law has recently changed with respect to residency requirements for same-sex marital partners to divorce in the State of California.  Below is an outline of the residency requirements as they exist, generally, along with comments regarding the new changes effective January 1, 2012.

Residency Requirements Generally. In order to obtain a divorce in California, one spouse must be a resident of the State of California for six months and of the county where the proceeding is filed for three months preceding the filing of the petition.  Either party may file for dissolution (divorce) as long as one party satisfies the requirements.  It is important to note that if the residency requirements are not satisfied and neither party contests residency, any defect in the requirement is waived.

The six-months/three-months residence prerequisite applies only to marriage dissolutions.  There is no residence requirement for filing for legal separation.  Therefore, if neither spouse satisfies the residency requirement but wish to obtain a divorce in California, and will later meet the requirements, a spouse can file for legal separation and later amend the petition.  This tactic could be used if one party intends to fulfill the six-months/three-months prerequisite eventually but would like to start the dissolution process immediately.  Once the requirement is satisfied, the spouse may amend the petition or the response to request dissolution instead of legal separation.

Domestic Partnerships. There is no minimum residence prerequisite to dissolve a domestic partnership that was established in California.  Domestic partners who register their partnership with the California Secretary of State thereby consent to California jurisdiction to end the partnership as well.   However, the residency requirements still apply in California if the domestic partnership was established outside of California.

Same Sex Marriages. For a brief period in 2008, California granted marriage licenses to same-sex couples.  Since November of 2008, California has banned such licenses. A problem arose when these married same-sex couples moved out of California to states that did not recognize their marriage and therefore would not grant them a divorce.   The couple no longer satisfied the California residency requirements and could not obtain a divorce in the state where they currently resided.

In 2011, the Domestic Partnership Equality Act was passed.  The Act authorizes a judgment for dissolution or legal separation of a marriage between persons of the same sex to be entered if the marriage was entered in California and neither party resides in a state that will dissolve the marriage.  On January 1, 2012, this exception to the California residency requirements became effective.

When contemplating a divorce or legal separation, it is imperative to consider where to file the petition. Dissolution cases involve difficult and life changing decisions. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and have successfully handled a variety of dissolution cases and can assist you with your matter. Feel free to call today at (714) 667-0045 for your free initial consult. You can also send us an email inquiry.

Timely Service of Temporary Restraining Order is Required for Validity

The process to obtain a restraining order against someone who is harassing, badgering, stalking or abusing you can be a difficult task.  So can defending yourself against frivolous claims of domestic violence in the family law courts.  In a recent but unpublished District 2 appeals case, the Court hammered home the point that the timing guidelines for service of a restraining order on the perpetrator of domestic violence must be strictly followed or the restraining order will be dismissed as a matter of law.

The law provides for service guidelines where papers seeking affirmative relief from the superior court must be filed and served on the opposing party in a timely fashion.  This provides the person who receives the papers ample time to prepare a response and appear at the hearing to defend himself or herself (i.e. “notice and opportunity to be heard.”)  When a motion is filed generally, the guidelines for timely service are found in the California Code of Civil Procedure (CCP), specifically at section 1005.  Most often, the person seeking an order from the court must serve the other party at least 16 court days before the hearing.  However, the law allows for exceptions.  In domestic violence cases, the court is allowed to (and always does) provide an “order shortening time” wherein the person serving the motion for a protective order must serve the other person at least 5 days before the hearing. 

In the  recent and unpublished case of Aubry v. Fields (District 2, Division 4, filed April 11, 2011), the appellate court ruled that a temporary restraining order served less than 5 days before the hearing must be dissolved, or dismissed.  Even though the hearing was continued to another day, the temporary restraining order was held to be irrevocably invalid due to the lack of proper service.

Restraining orders can be tricky.  They must be filed and served properly.  Our attorneys are skilled in filing temporary restraining orders, litigating for permanent restraining orders, and defending restraining orders.  We have helped hundreds of clients assert their rights in the superior courts throughout Southern California.  Call us for your free case evaluation today at (714) 667-0045 or email us.

Post-Judgment Family Law Specialists

Have you reached a marital settlement agreement which includes assets such as a retirement plan?  The value of a retirement plan has the ability to fluctuate in value as changes in the stock market occur. 

In a dissolution case, the parties have the ability to reach a Marital Settlement Agreement, or MSA, that can be incorporated into a judgment. In a recent case, Husband and Wife separated in 2007 after a 17-year marriage.  Within two months of their separation, a stipulated judgment of dissolution of marriage was entered.  Through this stipulation (agreement), the parties agreed that Wife would be awarded her retirement plan and that both spouses would have a community (shared)  property interest in Husband’s retirement plan.   Husband’s retirement plan was to be divided in a manner which equalized the distribution of the community assets and liabilities.

The parties agreed on a value for Wife’s interest in Husband’s plan in a judicially supervised settlement conference.  Wife’s interest in Husband’s retirement plan was valued at $405,000, minus one-half the community interest in her retirement plan.  The formal order stated that Wife’s interest was a defined number not to be affected by change due to market conditions nor accumulated interest.

In 2008, Wife attempted to enforce the parties’ settlement agreement and Husband moved to set the order aside on the ground that, due to the downturn in the stock market, the value of his plan had reduced significantly.  Unfortunately for the Wife, the court agreed and, in order to prevent a windfall to Wife, reduced the value of Husband’s retirement plan for the purposes of their agreement.

Wife appealed the reduced value of the retirement plan and the Court agreed that setting aside the agreement because of the change in value was an abuse of discretion.  The Court considered Family Code 2123, which provides that a judgment may not be set aside “simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support becomes in adequate.”  The legislature enacted this provision partly out of concern for circumstances that would discourage settlement. Absent this policy, courts would operate less efficiently and the parties’ settled expectations would be disappointed.  From a public policy standpoint, it is best to encourage parties to settle their own disputes outside of court.

When contemplating or participating in a divorce or dissolution case, it is imperative to review all retirement plans, property interests, investments, and agreements between spouses. Dissolution cases involve difficult and life changing decisions. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and have successfully handled a variety of dissolution cases and can assist you with your matter. Feel free to call today at (714) 667-0045 for your free initial consult. You can also send us an email inquiry.

Are you considering relocating to another state our country with your child or children? If so, a “move away” request must be granted by a family court judge before such a move is authorized. In considering whether to grant such a change in child custody, the court considers a variety of factors.

In an initial custody determination the court sets a parenting plan that is in “the best interests of the child.” In a move away case the same standard is applied yet the court has a few specific factors to consider. Such factors include the stability and continuity for the child, distance of the move, child’s age, child’s relationship with both parents, parents’ relationship with each other, child’s wishes, the reasons for the proposed move, and the current custody arrangement. However the spouse seeking the move away generally does not have to prove a compelling reason for the proposed move, unless when the reason for the move is to lessen the contact with the other parent. (La Musga (2004) Cal.4^th 1072, 1101.)

In a recently decided case filed July 22, 2011, the court in the 4^th District and 1^st Division allowed a Mother to move her daughter from California to her native country Sweden. In this case, the child was born in Sweden, where both parents were from, and came to the United States with her parents who obtained work visas. The parties divorced and agreed to share 50-50 custody of their daughter. However Mother’s work visa expired and she was offered another job in Sweden. Mother then started the move away process. She filed an OSC (Order to Show Cause) requesting that she be permitted to move away to Sweden with her daughter. Mother noted she had a steady job awaiting her in Sweden and the child would be surrounded by paternal and maternal relatives. At trial, Mother testified she would facilitate visitation with Father during holidays and via Skype. The trial court accordingly granted the Mother’s move away request.

In making its decision to grant the move away order, the court considered the above mentioned factors. The court noted that neither parent was a U.S. citizen and the child was born in Sweden. The child also had extended family in Sweden, including a sister. Additionally the parties had a good relationship and communication. Thus, the Mother was granted custody of the child when she relocated to Sweden.

Move away cases involve difficult and life changing decisions.  The court attempts to address the need for continuity and stability in custody arrangements. Often decisions weigh heavily in favor of maintaining ongoing custody arrangements. However, the court has discretion to allow a parent to move out of state or out of country  with their child when in the best interests of the child. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and  have successfully handled a variety of move away requests and can assist you with your matter.  Feel free to call today at (714) 667-0045 for your free initial consult.  You can also send us an email inquiry.

In a recently published case, In Re. Marriage of Margulis (2011) (CA Opinion filed August 11, 2011), the court discussed the broad fiduciary duties spouses and even former spouses owe each other when managing community assets after separation.

In this case, the parties separated after 33 years of marriage. The Husband had always been the breadwinner of the family and was in charge of the couple’s finances. After the parties separated, Wife trusted Husband to remain in control of the parties’ investment accounts and bills. However, years later in the couple’s dissolution proceedings, Wife discovered all of the parties’ community property investment accounts were nearly depleted due to the actions of Husband.

Under the applicable Family Code, spouses owe each other certain “fiduciary duties”. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other (Family Code § 721).  Such a fiduciary duty encompasses the duties of accounting, informing and disclosing of all financial information. The duty to account for the disposition of community property exists from separation to final distribution of assets (Family Code § 1100). The court here found that Husband had breached his fiduciary duties he owed to his Wife by failing to render accountings of the community property and inform Wife of the drastic changes to the parties’ accounts.

The court held “once a non-managing spouse makes a prima facie showing of the existence and value of community assets in the other spouse‘s control post separation, the burden of proof shifts to the managing spouse to prove the proper disposition or lesser value of those assets. Failing such proof, the court should charge the managing spouse with the assets according to the prima facie showing.” Thus a complete retrial of the community property issues was ordered. The court accordingly shifted the burden to Husband to prove that he did not improperly mis-manage the community assets.

The division of community property can be a very challenging aspect of dissolution cases. Hiring a competent attorney will ensure that all assets are divided equitably.   Our attorneys are experienced in such issues and can assist you with your matter.  Feel free to call today at (714) 667-0045 for your free initial consult.  You can also send us an email inquiry.

In a recent unpublished opinion filed July 11, 2009 by the 4^th District, 3^rd Division, the court discussed the issue of income for spousal support purposes. There the parties separated after 25 years of marriage. Husband was an entrepreneur, rather than employee with a steady paycheck, and the court set spousal support in the amount of $3,000 per month. The following year after the parties separated, Husband incurred some investment losses and paid no federal income tax. Husband accordingly argued that in the two years following his divorce, he had no income due to the decline in his business attributable to the economy. The court however disagreed.

The Family Code, which governs family law cases, does not define “income” and thus the term is open to the court’s discretion. Additionally Family Code Section 4330 (a) permits the court to order a party to pay spousal support for a time the court determines is just and reasonable.

The court concluded that although there was no gross income attributable to Husband for tax purposes, there was still income attributable to him for purposes of spousal support. Husband’s “income” was the money he had available to him for paying his own reoccurring monthly expenses. Husband still had a steady cash flow available to him coming from his business entities even though the businesses were operating at a loss. Husband was still able to draw a salary from his operating companies despite such losses and the court considered this cash available to him income.

The calculation of spousal support requires the consideration of multiple factors. The court will look at the ability of the supporting party to pay, the paying party’s earning capacity, which includes earned and unearned income and other assets, and the standard of living during the marriage. Thus in the case at hand, the court rejected the outright principle that an individual who has no gross income for tax purposes or business profits does not have any income for spousal support purposes. Rather the court here looked at the salary the Husband drew each month instead of focusing on the business losses.

Collecting spousal support can be a complicated issue. For more information contact our Certified Family Law Specialists. We offer a private consultation and our lawyers are skilled in a variety of family law issues including spousal support matters. Feel free to send us an email or call our office at (714) 667-0045, where our attorneys will be able to speak with you directly.

There are many required elements to valid premarital agreements.  In an interesting twist, a recent Court of Appeal ruling found that the Cal. Fam. Code 1615(c)(2) mandatory 7-day wait period does not apply to parties represented from the outset.

In the Cadwell-Faso & Faso (2011) (CA 1/4 Opinon filed January 11, 2011) case, a Husband and Wife negotiated the terms of a premarital agreement prior to marriage.  Husband’s attorney drafted an agreement which Wife rejected.  Wife’s attorney drafted four different versions of the pre-nuptial agreement, all of which Husband rejected.  A fifth version of the agreement was drafted by Wife’s attorney after Wife threatened to cancel the wedding.  The fifth version of the agreement was faxed to Husband’s attorney on May 19, 2006.  Six days later, the parties met in Husband’s attorney’s office, made one final change, and signed the agreement.  The parties married two days later. 

One year later, Wife filed a legal separation action and Husband responded by requesting a divorce.  Husband filed a motion to set aside the premarital agreement because he did not have seven days to consider the agreement before signing.  Husband’s attorney advised him at the time that the agreement was unenforceable because it was not presented seven days before it was signed pursuant to Cal. Fam. Code 1615(c)(2).  Neither Husband nor his attorney mentioned that the agreement was unenforceable to Wife or her lawyer.  Husband signed the agreement knowing it was unenforceable.  Wife testified she believed they reached an agreement.  The trial court found that the seven-day rule applied even though both parties were represented by attorneys, and that the seven-day clock did not begin to run from the presentation of the first draft.  The court ruled Husband’s signature on the document was involuntary and the agreement unenforceable.

The Court of Appeal reversed.  On appeal, the parties focused on whether the seven-day period is mandatory and exactly when the seven day period began.  The Court of Appeal expanded on the issues asking the parties to brief whether Section 1615(c)(2) applies to represented parties.

The Court of Appeal concluded that the code section is ambiguous because it says there must be at least seven days between the time the party “was first presented with the agreement and advised to seek independent legal counsel…”  The Court concluded “the waiting period is for the benefit of a party not represented b counsel at the time the agreement is presented, thereby affording time to obtain counsel and enjoy the benefit of counsel’s review of the agreement and advice prior to signing it.”  The Court pointed out that it does not make sense to require a party pursuing enforcement to advise the other party to seek independent legal counsel when that party is already represented. 

In sum, the Court of Appeal held that the seven-day wait period does not pertain to a party who was represented in the transaction from the outset. 

Premarital, or prenuptial agreements are important legal documents.  It is wise and prudent to take all necessary precautions to ensure your agreement is drafted, executed and carried out in the legally correct way.  Our attorneys are experienced in drafting and reviewing premarital agreements and can assist you with your matter.  Feel free to call today at (714) 667-0045 for your free initial consult.  You can also send us an email inquiry.

In a recent unpublished Department of Child Support Services case arising out of District 1, the Court of Appeals affirmed a trial court’s ruling which denied retroactive modification of a child support order.  The facts of this case commonly occur in many family law matters where child support is an issue.   

In the Naracic matter, the parties divorced their marriage using a Marital Settlement Agreement incorporated into a judgment in 2006.  In 2007, an Order to Show Cause was filed wherein a modification of child support request was made.  In February 2007, the trial court ordered that effective January 1, 2007, Father would pay Mother $2774 per month in child support.  The trial court also reserved jurisdiction to retroactively modify its order if either party provided new information regarding certain financial factors.  The trial court set a trial for 2008.

Before the trial, the parties stipulated (agreed) to take the trial “off calendar”.  This means that the underlying motion was not heard by the trial court and therefore it did not make any further rulings.  Almost one year later, Father filed a motion to downward modify his child support obligation, and further requested that the trial court downward modify the support retroactive to January 1, 2007.  Father argued that the trial court reserved jurisdiction to retroactively modify the support amount to that date.

Unfortunately for Father, the trial court did not agree.  The court declined to retroactively modify the support amount to any date prior to when Father’s present motion was filed.  The Court of Appeal agreed with the trial court and Father lost on appeal.  The trial court and Court of Appeal looked at Family Code 3653, which prohibits retroactive modification of a child support order unless the retroactive order is made to the date of filing of the present motion or any subsequent date.  The Court of Appeal rejected Father’s argument that the trial court expressly reserved jurisdiction to retroactively modify, agreeing with the trial court’s logic that because the parties’ trial was taken off calendar, the parties’ previous dispute was resolved completely.  Therefore, the court no longer had any jurisdiction to modify child support until a new motion was filed.

The result in this case confirms that very specific language is needed if retroactivity is truly desired by the parties.  Since there was not substantial evidence to support Father’s claim that the court intended to reserve jurisdiction to modify a child support order, it is imperative that in your case, if retroactivity is an issue, that your attorney include specific and direct language setting forth exactly the court’s ability to order support to a date sometime in the past.  Our attorneys are experienced at drafting such language.  Feel free to call our divorce specialists today at (714) 667-0045 or send us an email.  Our attorneys are available to speak to you now.