Posted on Wed, Feb 08, 2012 @ 11:54 AM
In a landmark decision that could have major ramifications for California family law attorneys and same-sex spouses, the U.S. Ninth Circuit Court of Appeals voted by a narrow 2-1 margin to overturn Proposition 8, the controversial same-sex marriage ban that was passed by California voters in Novermber, 2008. This is the first-ever ruling by a federal appellate court to overturn any of the many recently passed state laws that define marriage as the union of a man and a woman.
In the majority opinion, Judge Stephen Reinhardt wrote, "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."
The case now moves on to the U.S. Supreme Court. In the meantime, the California ban remains in effect.
For CA Bay Area reactions to the decision, see http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/07/BA1H1N3T1H.DTL#ixzz1lob0HkSX
Posted on Sun, Feb 05, 2012 @ 11:53 AM
This article explains, in general terms, the procedure for modifying an order for child or spousal support in California. These procedural guidelines are applicable to all Bay Area counties in California, including San Mateo, Santa Clara, Alameda, San Francisco, Marin, and Contra Costa County.
Under California law, guideline child support orders are modifiable during the pendency of the proceeding or post-judgment provided that there has been a change of circumstances since the last order was entered. Below guideline child support orders are modifiable at any time; it is not necessary for you to demonstrate a change in circumstances. The modification of spousal support orders also requires a showing of changed circumstances. However, it is important to note that some spousal support orders are non-modifiable pursuant to the terms of the order. For more guidance on what constitutes a change in circumstances, please refer to the California Courts website at http://www.courts.ca.gov/1196.htm and http://www.courts.ca.gov/1250.htm.
It is important to note that if you were ordered by the court to pay support and you can no longer afford to do so because you lost your job or for some other reason, you should file paperwork with the court immediately because the court does not have the power to modify support retroactively. In addition, any arrears will accrue interest at the rate of 10 percent per year.
Or, you may be the party receiving support and have reason to believe that your former spouse or the other parent has changed jobs or is earning more income than he or she was at the time the support order was made. In that case, it is not necessary for you to file a motion in order to get information about the other party’s finances. Rather, you can simply serve a FL-396 Request for Production of an Income and Expense Declaration After Judgment (http://www.courts.ca.gov/documents/fl396.pdf) form on the other party. Within 30 days of service, the other party will be required to complete and return a current Income and Expense Declaration along with their most recent state and federal income tax returns. Parties are allowed to do that once per year, regardless of whether any litigation is taking place.
If you decide that the circumstances warrant a modification of the current support order, you should consult the court’s information form (http://www.courts.ca.gov/documents/fl391.pdf) for an overview of the procedure.
As always, the attorneys at Seeley & Madigan, LLP are here to help you review your information and prepare your documents for submission to the court.
Posted on Sat, Feb 04, 2012 @ 11:50 AM
I would like to start this article by thanking Mr. Garrett Dailey of Attorney Briefcase for the very informative presentation he gave recently to the San Mateo Bar Association Family Law Section about the recent changes to the California Family Code regarding children appearing as witnesses in family law disputes.
Effective January 1, 2012, when children reach the age of fourteen, if they desire to address the court regarding custody or visitation, California courts are required to permit them to do so, unless the court determines that doing so is not in that particular child's best interests. And, in those cases the court must now state its reasons for that finding on the record.
The amended statute can be found here:
The amended statute is not a mandate that the court permit each and every teenager over the age of fourteen to address the court. In fact, judges are not supposed to ask to speak to the child. Instead, the court must wait for a child’s attorney, an evaluator, an investigator, a mediator, or one of the parties to tell the court that the child wants to be heard. (Fam. Code, § 3042, subd. (f).) Once this desire is made known, then the court must decide whether or not it is appropriate or in the child’s best interests to hear his or her testimony.
The guidelines for determining whether addressing the court is in a child’s best interests are as follows:1) whether the child is of sufficient age and capacity to reason to form an intelligent preference as to custody or visitation (parenting time); 2) whether the child is of sufficient age and capacity to understand the nature of testimony, i.e. the obligation to tell the truth; 3) whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court; 4) whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision-making process; and 5) whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so. (Cal. Rules of Court, rule 5.250.)
To take a concrete example, the court may determine that a 14-year old who wants to live primarily with her mother because she has a curfew at father's house is not of sufficient age and capacity to reason to form an intelligent preference as to custody within the meaning of the statute. It should also be noted that children under the age of 14 are also permitted to address the court regarding custody and visitation issues, as long as “the court determines that it is appropriate pursuant to the child’s best interests.” (Fam. Code, § 3042, subd. (d).)
Once the court has decided to hear testimony from a child, it is allowed great latitude in determining the manner in which the testimony is taken. In the majority of cases, it would be traumatic for a child to testify in a public courtroom in front of both parents and strangers. If the court concludes that it is not in the best interests of a child to testify in court, the new law requires the court to provide alternative means of obtaining the information from the child, such as requiring the child to participate in child custody mediation or the appointment of an evaluator. (Cal. Rules of Court., Rule 5.250(d).)
While the court is required to give “due weight” to the child’s wishes, it is not required to follow the preferences of the child when fashioning its custody order. In other words, just because a child wants to live primarily with a particular parent, does not necessarily mean that the court is going to order this. Rather, the determination will be based on an analysis of that particular child’s best interests.
Posted on Thu, Dec 22, 2011 @ 06:51 PM
In California, divorcing couples with a custody or visitation dispute are required to attend mediation through Family Court Services with a mental health professional. (See California Family Code, section 3170.)
Before proceeding with any custody litigation, you should first determine whether your case is venued in a recommending or non-recommending county. In the Bay Area, most but not all counties are recommending counties. San Mateo is a recommending county, as are Santa Clara, Alameda, and Contra Costa, but San Francisco County is not. The Family Court Services mediation process is described by the Superior Court of California as follows: “The child custody recommending counselor will assist the parties in reaching an agreement regarding custody, visitation and parenting issues for their children. If the parties do not reach agreements in all areas of the parenting plan, the child custody recommending counselor will make recommendations to the court on the items still in dispute. Prior to doing so, the counselor may interview the children and other collateral witnesses who may have pertinent information.” (See http://www.saccourt.ca.gov/family/custody-mediation.aspx)
While the counselor’s reports are not rubber-stamped by the judge or commissioner in your case, they carry a great deal of weight. It is critical that an attorney with family law experience in your county prepare you for the mediation. From the Court's and the counselor’s perspective, the best interests of the child are paramount, and the manner in which you present information about yourself and your child during mediation can be critical to the outcome.
At Seeley Madigan, LLP, we meet with our clients at our office prior to any mandatory mediation with the Court. We will explain the common mistakes to avoid, help you prepare your talking points, budget your time, and develop your strategy for the mediation. The better-prepared party tends to get the more favorable report. For clients who cannot afford full representation at the custody hearing, we also provide consulting services.
Posted on Sat, Oct 22, 2011 @ 12:51 PM
The area of fiduciary duty law was expanded with the Court of Appeal’s recent decision in the Marriage of Prentis-Margulis v. Margulis, Case No. G041948, filed August 11, 2011. Basing its decision largely on the Amicus Brief filed by Stephen Temko and Dawn Gray for the Association of Certified Family Law Specialists and the Southern California Chapter of the American Academy of Matrimonial Lawyers as Amici Curiae, the Fourth Appellate District held that the in-spouse or spouse who manages and controls the community’s assets has the burden of accounting for all post-separation spending and/or depletion of those assets in a dissolution proceeding. For instance, if wife can prove that husband was managing a community investment account with funds in the amount of $500,000 and the value of this account at the time of the dissolution proceeding has dropped to $100,000, he must account for the missing $400,000. If he can’t do this either by proving that the $400,000 was lost due to market forces or was spent on community expenses, the Court will charge him with these assets on the marital balance sheet. This means that wife should be offset and receive assets or cash of an equal value.
This, in our view, is the correct and fair result. Frequently, the out-spouse, or spouse that does not control community assets, will have no way of proving that community funds were misappropriated by the in-spouse because the financial records no longer exist, whether it be because they have been destroyed by the in-spouse or they are so old that they can’t be obtained directly from the financial institution. In the Margulis decision, the only evidence wife could produce regarding missing funds in the amount of $767,000 from stock brokerage and money market accounts in husband’s post-separation control was a financial statement prepared by husband and the Schedule D from the parties’ joint income tax returns. In response, husband argued that the values of certain accounts were dissipated due to proper expenditures and stock market losses, although he had nothing to back this up apart from his testimony at trial that he needed money to pay current expenses and wanted to avoid further losses in a declining market. The trial court concluded that Wife had not met her burden of proving that husband misappropriated assets and declined to charge husband with the missing funds in the property division. The Court of Appeal rejected the trial court’s decision and held that, “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.”
The Court of Appeal’s decision in Margulis has major implications for divorce litigation in California. It is not enough for the in-spouse to assert that community funds were spent on community expenses or lost in the market, without documents to back this up. As noted by the Court of Appeal at page 14, “This lack of accountability poses a risk of abuse and runs afoul of the statutory scheme imposing broad fiduciary duties of disclosure and accounting on a managing spouse.” In appropriate cases, the attorneys at our firm will work closely with a forensic accountant to gather together all the necessary documents and trace the flow of cash post-separation so that all monies spent or lost due to investment losses can be accounted for and the in-spouse can meet his or her burden of proof.
Posted on Tue, Aug 09, 2011 @ 04:26 PM
A previous post explained how the California Family Court decides the "guideline" levels for child support (The original post can be found here). This post considers some special circumstances where the Court can issue a support order that is outside of the support guidelines.
When developing a Child Support Order, the overriding concern of the court is to protect a child's right to material wellbeing by requiring parents to contribute financially. With this in mind, the California Family Court developed guideline support formula as a straightforward means to ensure a child's material wellbeing. However, the guideline support formula is not always used, nor is it always appropriate.
When might guideline support amounts simply not be used?
Sometimes, as parents work to reach agreements on child custody arrangements, visitation, and support, they may agree to a child support amount that is below what the guideline formula recommends. They will draft an agreement that reflects this lower support amount and submit it to the court. The court will review, and sometimes grant these requests, but the parents must be able to demonstrate that the lower support amount will still meet the child’s needs, and the parents will need to sign special statements that that are mandated by the California Family Code with regards to this lower support amount that acknowledge their responsibilities with regards to support. Conversely, parents can always voluntarily agree to pay a support amount that higher than the guideline recommendation.
When might the guideline support amount not be appropriate?
It is common in very high asset/income cases for a high-income-earning parent to ask the court not to apply the guideline formula because guideline support would result in a number that grossly exceeds the child’s needs. For example, there are some high income and asset scenarios in which the child support guidelines would suggest child support amounts in the hundreds of thousands of dollars. In situations like these, where there is so much money at stake, the court would ask for a forensic accountant to analyze the true cost of maintaining the child’s lifestyle at the time that the parents were married. Once the forensic accountant completed this analysis, the court might find that guideline support exceeds what is truly needed to support the child at the marital level.
California case law regarding high income/ high asset families has developed in recent years to ensure that children will not experience a huge economic shift when living with each parent post divorce, that is, there should not be a rich parent and a poor parent. Indeed, there are cases where the high income parent has custody of a child 90% of the time, but must still pay a significant amount of child support to the other parent so that the child does not experience a huge economic disparity when visiting the other parent. This means the child support must be high enough for the other parent to live in comfortable circumstances (including housing) even if the child is with that parent only 10% of the year.
The goal in the very high income case is to ensure while living with both parents, the child enjoys a similar lifestyle. Using San Mateo County as an example, according to the Court, a child should not be transferring from one parent’s rental home in a modest community to the other parent’s estate in Hillsborough, Atherton, or Woodside. Or, to consider a recent, high-profile example, if we assume that Arnold Schwartzeneggar has a legal obligation to support the child born from his relationship with the family housekeeper, Mildred Baena, then that child would be entitled to an amount of child support that would allow him to experience a similar standard of living at his mother’s home as that of his father’s home. In an attempt to reach a similar standard of living, there would have to be sufficient child support to allow for private schooling, vacation homes, trips and vacations, private jet travel, activities such as horses or equestrian events, so that any event or activity that the child enjoys in one parents home can be equally enjoyed in the other parent’s home.
Posted on Mon, Jul 25, 2011 @ 01:33 PM
This post helps explain "guideline" child support and how it is calculated for California. What is true for the state of California is true for all of its legal jurisdictions, including our home county of San Mateo.
For the unititiated, California law regarding child support payments can be baffling. The California Family Law Code reads, simply:
California Family Law Code 4055
(a) The statewide uniform guideline for determining child support orders is as follows:
CS = K (HN - (H%) (TN)
This complex calculation belies its very simple purpose. This particular piece of Algebra was written to ensure that children receive the generous financial support they need, while also making certain that each parent provides only their equitable share of this support. In California Family Law, when the amount of child support set according to the above calculation, it is known as "guideline support."
The above equation takes many factors into account, including the relative income of both parents, the number of children in the family, and the amount of time children spend in the care of each parent, according to specific time-sharing or visitation plans. All of these numbers help to modify and balance the amount of money each parent pays in support. Nearly all family law attorneys rely on a program called DissoMaster™to develop accurate child support calculations. DissoMaster™was written according to the guidelines for child support from the Californial Family Law Code, and it accepts a variety of data related to income, family size, and visitation schedules to produce an accounting spreadsheet that can be used by attorneys to negotiate the guidelines for support.
In families with uncomplicated estates, the calculation is ordinarily quite straightforward, and DissoMaster™can account for many forms of income, such as interest from passive investments, employee bonuses, grants of stock, income from rental properties, disability payments, and Social Security, and their associated tax consequences.
In our practice, we also encounter clients with with large, complicated estates--family trusts, businesses, joint and private investment accounts, retirement savings. In these situations we partner with experienced forensic accountants and carefully review the income, asset, and tax data to ensure that the child support guidelines are accurate.
Of course, the paragraphs above describe only "guideline" support. In some special circumstances, such as the amount of support paid by high-income earners, a judge is authorized to step outside the prescribed guidelines and award support above, or below what the state mandates in the California Family Code. In another post, we will take a look at some of these special circumstances.
Of special note: The California Department of Child Support Services offers a useful "Guideline Calculator" that can help individuals estimate their child support responsibilities. You can reach the DCSS site by clicking here.
Posted on Sun, Jan 02, 2011 @ 02:58 PM
Scanning through the news this weekend, I came across this intriguing article from the Detroit Free Press:
----
Dec. 26, 2010
A Rochester Hills (Michigan) man faces up to 5 years in prison -- for reading his wife's e-mail.
Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.
Using her password, he accessed her Gmail account and learned she was having an affair. He now is facing a Feb. 7 trial. She filed for divorce, which was finalized earlier this month.
Legal experts say it's the first time the statute has been used in a domestic case, and it might be hard to prove
"It's going to be interesting because there are no clear legal answers here," said Frederick Lane, a Vermont attorney and nationally recognized expert who has published five books on electronic privacy. The fact that the two still were living together, and that Leon Walker had routine access to the computer, may help him, Lane said.
"I would guess there is enough gray area to suggest that she could not have an absolute expectation of privacy," he said.
About 45% of divorce cases involve some snooping -- and gathering -- of e-mail, Facebook and other online material, Lane said. But he added that those are generally used by the warring parties for civil reasons -- not for criminal prosecution."
-----
What is most interesting abou
t about this case is that Mr. Walker is being charged with crimes commonly associated with electronic espionage, which usually targets sophisticated computer hackers, not everyday individuals.
Leon Walker is being prosecuted under Michigan statue 752.759, which reads, in part:
"A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:
"Access or cause access to be made to a computer program, computer, computer system or computer network to acquire, alter, damage delete or destroy property or otherwise use the service of a computer program, computer, computer system or computer network."
Electronic privacy law is still an underdeveloped area of family law, but it is growing rapidly. We now share so much of our lives on Facebook and other social networking sites, and these sites are regularly mined by divorce attorneys and their clients. Certainly, there are exceptional circumstances in this case - Mr. Walker has considerable computer training - but as these skills become far more ubiquitous, I wonder where electronic privacy law is headed.
For the full article read: http://www.freep.com/article/20101226/NEWS03/12260530/
Posted on Tue, Nov 09, 2010 @ 01:23 PM
Filmmaker/Social Commentator Nora Ephron has recently released a book "I REMEMBER NOTHING: And other reflections" (Random House, 2010) in which she offers a look into her own experience of divorce - the hidden tolls, the unexpected revelations - which is very insightful. A valuable read for anyone considering divorce, or going through the divorce process.
You can hear Nora Ephron speak at length about this book in this video produced by Amazon.com - Nora Ephron, "I Remember Nothing"
Posted on Mon, Apr 05, 2010 @ 02:33 PM
A recent article in the Las Vegas Sun describes the treasure trove of evidence that divorce attorneys can glean from social networking sites, such as Facebook and Twitter. As the article illustrates, family law attorneys are combing social network sites for evidence to bolster their cases.
In our practice, we have seen vengeful spouses use Facebook, Twitter, and other social-networking sites as a weapon - disparaging their spouses on Facebook in an attempt to alienate them from mutual friends and family. Be forewarned, judges do not take kindly to this practice and will shut it down quickly.
http://www.lasvegassun.com/news/2010/apr/30/surprise-witness-facebook/