Concerning Family Law
Thursday, June 13, 2013
Child Support for 18 year old Highschool Students in California
Just because a minor child turns 18 years old it does not mean that child support ends there. California Family Code Section 3901 states that if a child is a full time student in high school and is not self supporting the custodial parent can receive child support until they graduate or turn 19 whichever comes first.
Wednesday, November 7, 2012
Inter-Jurisdictional Custody Disputes under the Uniform Child Custody and Jurisdiction Act (UCCJEA)
I
had a case recently where a married couple with one child lived in Oregon and
the parties had difficulties and separated.
The Father moved to California, while the mother left with the children
to Arizona. If Father were to file for
divorce in California he would have to meet the residency requirements under
California Family Code Section 2320. Mother
had to meet similar requirements before filing her Petition for Dissolution of
marriage in Arizona. Of course, personal
jurisdiction of a California Court comes into play especially if mother had no
contacts with California, but that issue aside.
In
California, each party with children is required to file a UCCJEA declaration
on the form FL-105. This declaration is
to comply with California Family Code Section 3400 et seq. Essentially, the party is to provide a
declaration of the child’s residency for the past 5 years. The UCCJEA declaration is required if you
file for divorce in California with children.
Father
filed in California for Dissolution even though it was questionable that he met
the residency requirements. He also
filed a UCCJEA declaration where he did not disclose that Mother filed a
Petition for Dissolution in Arizona earlier.
Under
the Uniform Act or UCCJEA, the court that has notice of another state’s pending
custody action under California Family
Code 3421. There are several ways
that a California Court can confer jurisdiction over the custody dispute: (1)
California must be the child(ren)’s home
state; (2) The child(ren) have a significant connection and substantial
evidence exists in favor of California asserting jurisdiction. (3) California
is the more appropriate forum. (4) No court of any other state would have jurisdiction
under (1), (2), & (3).
1. “Home state” means a state where the child lived with the parent
for at least six consecutive months immediately before commencement of the
custody proceeding. California Family
Code 3402(g).
2. “Significant connection” and “substantial
evidence” California courts
can only exercise custody jurisdiction if all the following
conditions are satisfied: (a) No other state has “home state” jurisdiction
or a court of the home state has declined to exercise jurisdiction on the
grounds that California is the “more appropriate forum” under Cal. Fam. Code §
3427; and (b) The child and the child’s
parents, or child and at least one parent have a significant connection with
California other than mere physical presences; and (c) substantial evidence is available in this
state concerning the child’s care, protection, training and personal relationships.
A parent’s short term presence in the state, even if sufficient to confer
personal jurisdiction and the exercise of in rem jurisdiction of the marital
res, is not sufficient for custody
jurisdiction; there must be additional factors establishing closer ties with
the state.
3. Other states have declined jurisdiction in
favor of California as the “more appropriate” forum: There has been no other state that has declined
jurisdiction over custody based on California being the more appropriate forum.
This just means that another state had
the chance to have jurisdiction or to take the case, but declined or refused to
do so because California was more appropriate.
4. California Jurisdiction by “default”: California has jurisdiction to make an
initial custody determination if no court of any other state would have
jurisdiction under the first three tests.
Cal. Fam. Code 3421(a)(4). This
means that the court will look at the other states and whether they would be
the proper state under the first three tests above.
California Family
Code Section 3427 provides a “more appropriate forum” analysis to aid Courts in
their determination as to which state, if any, is the most appropriate forum
for adjudication of the custody matter.
That is, prior to this Court determining whether it has jurisdiction or
whether it is an inconvenient forum, the Court is required to analyze as an
initial matter whether another state is a more appropriate forum. See Cal. Fam. Code, §3427(a)-(b). To determine whether or not a more appropriate forum exists for child
custody matters, the Court looks at all relevant factors, guided by a
non-exclusive list set forth in Fam. Code §3427(b)(1-)-(8):
·
(1)Whether domestic violence has occurred and is
likely to continue in the future and which state could best protect the parties
and the child.
·
(2)The length of time the child has resided outside
this state.
·
(3)The distance between the court in this state and
the court in the state that would assume jurisdiction.
·
(4)The degree of financial hardship to the parties
in litigating in one forum over the other.
·
(5)Any agreement of the parties as to which state
should assume jurisdiction.
·
(6)The nature and location of the evidence required
to resolve the pending litigation, including testimony of the child.
·
(7)The ability of the court of each state to decide
the issue expeditiously and the procedures necessary to present the evidence.
·
(8)The familiarity of the court of each state with
the facts and issues in the pending litigation.
In the above code
sections I’ve listed is some of the analysis that goes into a Inter-state child
custody dispute. Essentially, California
needs to determine if it has an interest in the dispute and if it is convienent
for the parties to litigate in California.
These along with other legal theories will aid your case. If you have an inter-state or
inter-jurisdictional custody dispute or you think that you may have one it is
best to get advice from an attorney which understands the law.
Tuesday, July 24, 2012
Move Away Cases in California
What happens in a situation where the custodial parent after
a permanent custody determination wants to get up and move away? What does the non-custodial parent do?
The non-custodial parent has a large hurdle to cross. By statute, the parent with custody of the
children is presumed to have the right to move away with the children. Cal. Fam. Code § 7501. Family Code 7501 has codified the California
Supreme Court Case of Marriage of Burgess (1996) 13 Cal.4th 25.) In Burgess, the parent with custody of the
children decided to move 40 miles away from Tehachapi to Lancaster, CA. The Supreme Court stated that the custodial
parent does not need to show that the move is “necessary.” This rule will only apply in situations
where there has been a final custody determination not where there has only
been a temporary custody determination.
The non-custodial parent has to prove that the move is a
detriment to the children. What comes to
mind is the detriment of the child of not being able to continue the same
relationship with the non-custodial parent.
This is just one factor in the court’s determination of whether or not
there is a detriment. So the
non-custodial parent must file a motion with the court and show a detriment in
their motion. In these types of
move-away cases it is best to consult an Attorney to draft the motion because
they understand the legal standards and procedural loopholes in order to get
you the best chance of succeeding on your motion.
Thursday, June 7, 2012
Needs-based Attorney Fees in California Family Law and Divorce Cases
Under the California Family Code §2030, needs-based
attorneys fees may be awarded to one spouse to ensure equal access to
representation. What this means is that
it is entirely possible that one spouse usually the breadwinner of the family
may have to pay in a dissolution action the attorneys fees for both
parties. The purpose under 2030 is to
preserve each parties rights in the dissolution (divorce) proceeding.
The exact amount that should be awarded as a needs based fee
is under full discretion of the Judge.
2030 says “whatever amount is reasonably necessary.” For a needs-based attorney fee award the
court will look at “whether there is a disparity in access to funds to retain
counsel, and whether one party is able to pay for legal representation of both
parties.” Such an attorneys fees award
should be granted early in the proceeding as a way of leveling the playing
field between the parties.
So what does this mean for litigants? Say your spouse was the breadwinner of the
family and controls most of the community resources, your spouse files a
dissolution action against you and lawyers up. You are left to defend the case
without an attorney. California Family
Code §2030 contemplates that in these types of situations this spouse will pay
for both the attorney’s fees to ensure equal access.
Monday, April 2, 2012
Prenuptial Agreements in California
This article will focus on the drafting of prenuptial or
premarital agreements in California presently and deals with the most recent
laws governing these agreements. You
NEED a lawyer if you are going to draft one of these agreements in order to
navigate the complex and strict statutory requirements. You NEED a lawyer because the agreement must
be upheld in court. With the way the
California Family Code statutes are written you will fail if you do not follow
the exact steps and meet every single requirement.
Some of the reasons why you might consider a prenuptial
agreement in California is to avoid or alter the default California Community
Property laws. You also may want to
alter the characterization of income acquired in the future such as earnings
and so forth. You may also want to
eliminate or minimize the surviving spouse’s inheritance rights. Whatever your reason, if you have substantial
assets and you are contemplating marriage or even if you don’t, you should talk
to an attorney about a prenuptial or premarital agreement.
The difficult thing is to broach the subject with your
future spouse the subject of obtaining a premarital agreement. Often and understandable, people simply do
not want to contemplate anything that could be perceived as negative. However challenging it may be to bring the
subject up, it may be the best and most prudent thing you can do. An effective premarital agreement will make understandable
the obligations between spouses both during and if separation or dissolution
occurs. Often litigation costs will be
lowered because if you have an iron clad premarital agreement, the other party
will not even bother litigating it saving both spouses an added headache. A well drafted and effective premarital
agreement will possibly solve problems of commingled property.
Prenuptial Agreements can deal with an assortment of topics
or issues. For example, parties can put
in a provision for Spousal Support.
Parties can even waive Spousal Support in the agreement if each party is
represented by independent counsel. On
the other hand, premarital agreements cannot waive child support. Essentially, you can put anything you want in
a prenuptial agreement unless it violates California Public Policy.
The real nuts and bolts of premarital agreements are located
in California Family Code §1615. This is
why you NEED an attorney to draft and navigate you through the process. Prenuptial agreements cannot be unconscionable. Ok this sounds reasonable. To not be unconscionable you need a fair,
reasonable, and full disclosure of property of financial obligations by each
party. This means that you must disclose
property that you hold to your prospective spouse and once this is completed
you need to have your prospective spouse sign a waiver that waives further
disclosures.
Further, prenuptial agreements, according to California
Family Code §1615, must have voluntariness.
Voluntariness is defined by the statute and includes all of the
following: the prospective spouse must
be represented by counsel at the time of signing the agreement or after being
advised to seek independent counsel expressly waives in a separate writing
representation by independent counsel.
This means that aside from the prenuptial agreement itself, you need a
waiver of representation by independent counsel that is essentially a separate
agreement not to obtain counsel for the purposes of the prenuptial
agreement. Also, seven calendar days
must pass before the prospective spouse receives the agreement and the time it
is signed. During these seven days,
counsel who drafts the prenuptial agreement must fully inform the prospective
spouse of the terms and basic effect of the agreement as well as the rights and
obligations he or she was giving up by signing the agreement. Further, the prospective spouse must be proficient
in the language of the explanation and the language of the agreement.
Essentially, if you miss or do not follow any of the steps
in the above paragraph your agreement will be deemed not to have voluntariness
and will be worthless no matter how voluntary it appeared to be at the time of
the signing agreement. California Family
Code §1615 acts as a checklist for voluntariness if you do not check off all
the boxes you agreement will be invalid and will not hold up in court and all
of your expectations of what you thought your rights were will be
extinguished.
I implore you that if you are going deciding to draft or
purchase an agreement online to get an attorney to assist you with the process
otherwise you are simply wasting your money and time.
Tuesday, January 31, 2012
Modification of Spousal Support in California: A Case Analysis
The purpose of this post is to help you understand what type
of analysis a court uses in determining whether a modification of spousal
support is warranted. Let’s use an
example.
I’m using the following appeals case of (In re Marriage of Shaughnessy (2006) 139
Cal. App. 4th 1225) as the example of how the courts apply law to a factual situation. This case is a good example of spousal
support because the couple has no children.
Therefore, you get a cleaner look on how spousal support law works.
Wednesday, January 4, 2012
Preserving the Family Home Even if Your Spouse Owns it Outright
California is a community property state. So property obtained through wages and
efforts of each spouse during the marriage are community property and generally
divided in half at dissolution. Separate
property is property is not included in the category of community
property. Separate property is property
held by a spouse before marriage, or during the marriage by gift, bequest, or
devise. Separate property usually
becomes that of its owner after a dissolution action.
If you are in a hotly contested divorce or dissolution
action, there may be a way to preserve the family home even if the family home
is a separate property asset of your spouse.
Preserving the family home when it’s your spouse’s separate property is
possible only if you have children and you have primary physical custody. Under California Family Code § 3800 et seq., it
is fairly common for Judge to enter a deferred sale of home order for a home
that has both a community property and a separate property interest. For example, one spouse has a house that has
not been paid off yet before getting married and the other spouse helps pay off
the mortgage with community property assets.
So this house is separate property with a community property interest. If this couple has children, and then decides
to get a divorce, the deferred sale of home order helps the spouse with primary
physical custody to keep the children in the family home. The policy of this law make some sense
because you want to keep the children’s living situation as stable as
possible. In this situation, both
spouses have an interest in the family home.
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