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Recent Blog Posts in April 2010 |
| April 25, 2010 |
| When do SOCIAL SECURITY BENEFITS commence after divorce? |
| Posted By Thurman Arnold |
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Q. When do Social Security Benefits begin after I divorce, and what might I be entitled to?
A. Although retirement benefits can begin at age 62, the amount received will be at least 20 percent less than the full benefits would be at normal retirement age.
These are 65 years if born before 1937; for those born between 1938 and 1954, between 65 years and 2 months to 66; from 1955 to 1960, 66 years plus 2 months for each year after 1955; and, if born after 1960, benefits begin at 67.
When a divorced dependent spouse elects to receive benefits at age 62, these benefits will be reduced by about 25%. Medicare benefits do not begin until age 65, except as recently changed in the federal health legislation.
This means that conditioning a reduction of alimony upon anticipated receipts at age 62 will result in an important lifetime loss of retirement benefits and may necessitate the purchase of health care insurance until age 65.
Another important limitation on when benefits can begin is when a divorced spouse seeks to collect derivative benefits based upon the earnings of a former spouse who has not yet applied for benefits, even though they are age 62 or older and have qualified for benefits.
In such situations the dependent spouse must wait until two years after the entry of the divorce decree to begin collecting these derivative benefits (they are entitled to collect the benefits they themselves paid in). Pay attention to this if you are the older spouse.
Thurman W. Arnold III
http://www.ThurmanArnold.com |
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| April 25, 2010 |
| Are SOCIAL SECURITY benefits income for purposes of SUPPORT calculations? |
| Posted By Thurman Arnold |
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Q. Are my social security benefits includible as income to me for purposes of my spousal support and child support application?
A. Pursuant to California Family Code section 4058 gross income for purposes of child support "means income from whatever source derived". Subsection (1) specifically identifies social security benefits as included.
While FC section 4058 is a child support statute, there is no companion definition of income for temporary spousal support and as a result section 4058 is generally applied to that context as well.
The question often arises whether Social Security is inputted into the support calculation as a taxable or nontaxable benefit - federal taxes are imposed on some of Social Security benefits, depending upon on combined income (the sum of adjusted gross income plus nontaxable interest plus one-half of Social Security benefits). The bottom line is that ask the Court to include it within "other taxable income" to avoid paying both taxes on the income and higher child or spousal support!
Thurman W. Arnold III
http://www.ThurmanArnold.com |
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| April 25, 2010 |
| What SOCIAL SECURITY BENEFITS may be paid to CHILDREN? |
| Posted By Thurman Arnold |
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Q. My former husband is very ill. If he dies, what Social Security Benefits may our two children be entitled to?
A. Social security benefits may be paid to children when one parent becomes disabled, retires, or dies. To be eligible, the child must be the contributing spouse's biological child,
adopted child,
stepchild, or a dependent grandchild and under the age of 18 or, if still in high school, under the age of 19 (unless the child is disabled).
The child must have one parent who is disabled or retired and entitled to SS benefits or have a parent who died after having worked long enough to have themselves qualify for benefits. A child may receive up to one-half of the contributor's retirement or disability benefits, or 75 % of the deceased parent's basic Social Security benefit (up to a family maximum).
If a stepchild is receiving benefits, and the contributing spouse divorces the child's parent, the stepchild's benefits will end the month after the divorce becomes final.
Social Security Disability Insurance (SSDI) provides benefits based upon disability. These benefits depend upon prior work and Supplemental Security Income (SSI). Disability benefits may be paid, if there are sufficient work credits, to blind or disabled workers, widows and widowers, or adults who have been disabled since childhood who are otherwise not eligible to qualify for benefits. The amount of the monthly benefit depends upon the Social Security earnings record of the worker.
SSI payments are based upon financial need to adults or children who are disabled or blind, have limited income and resources, meet certain living arrangement requirements, and who are otherwise eligible. Monthly benefits vary up to a maximum federal benefit rate, which is sometimes supplemented by the state.
Thurman W. Arnold III
http://www.ThurmanArnold.com |
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| April 25, 2010 |
| What SOCIAL SECURITY BENEFITS are paid upon the DEATH of a SPOUSE after DIVORCE |
| Posted By Thurman Arnold |
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Q. What widow's benefits exist from Social Security if my former spouse dies?
A. In order to qualify for derivative widow (widower) Social Security benefits, a couple must have been married for at least 10 years and the contributing spouse must have been fully insured through Social Security at the time of his death (the contributor must have paid into the system for at least 40 quarters).
In order to qualify for widow benefits, a surviving divorced spouse must be at least 60 years of age (or at least 50 years if disabled), and not have remarried again before age 60.
To prevent a loss of survivor benefits a former spouse who is nearing age 60 and considering remarriage should delay the wedding until after their 60th birthday. However, remarriage doesn't preclude eligibility for disabled surviving spouses or disabled divorcing spouses who remarry between ages 50 and 59.
Unlike what is received by way of derivative benefits on account of a former spouses still living - which is 50%, upon the former spouse's death the derivative spouse is entitled to 100% of the benefits the former spouse was receiving. What a widow receives depends upon their age: This amount is between 70% at age 60 and 100 % at age 65.
TWA |
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| April 25, 2010 |
| SOCIAL SECURITY BENEFITS and REMARRIAGE for divorced spouses |
| Posted By Thurman Arnold |
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Q. I would like more information on my social security benefits in divorce if I remarry.
A. A divorced person may receive social security benefits in one of two ways: (1) upon retirement based upon that spouse's own contribution to the Social Security system or (2) as the spouse of a contributor, so long as the marriage was not dissolved before the end of ten years and the divorced spouse has not remarried (so-called "derivative benefits"). Persons entitled to either set of benefits receive the higher amount. Derivative benefits do not come out of the contributing spouse's pocket.
Derivative benefits depend upon the former spouse's eligibility for benefits (whether or not they receive them yet), which requires that the other spouse is at least 62 years of age and fully insured (having contributed to Social Security for 40 quarters and thus qualifying for full benefits). This fact is important for dependent spouses who are older than the contributing spouse. In order to receive benefits, the dependent spouse must be at least 62 years of age and unmarried.
In the dependent spouse does remarry, he or she becomes ineligible for derivative benefits from a former spouse. If he or she divorces again, they become eligible for derivative benefits again, including the new marriage so long as the marriage lasted for 10 years. In situations of multiple 10 year marriages, the dependent spouse is entitled to the highest benefits of a former contributing spouse. Qualifying remarriages include a legal marriage, common law marriages where recognized, and "deemed marriages" - where a person in good faith went through a marriage ceremony but the marriage somehow did not qualify as a legal marriage under the laws of a particular state.
T. Wesley Arnold III
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| April 24, 2010 |
| Will California recognize a SAME SEX MARRIAGE from Vermont? |
| Posted By Thurman Arnold |
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Q. My same sex spouse and I were married in Vermont in 2001 but moved to Palm Springs five months ago. Now it looks like we are splitting up. She works full time and I take care of the home. Can I seek spousal support in California and get our marriage dissolved here?
A. As you probably know, Vermont was the first state to offer civil union status to same-sex couples (2000) which was identical to that offered to opposite-sex couples. California was the first state to offer any legal status to same-sex couples. Today the only states/territories that permit same-sex marriages or the equivalent civil unions are Connecticut, Washington D.C., Iowa, Massachusetts, New Hampshire, and Vermont.
Other states give varying recognition to same sex partnerships - for instance, California, Nevada, Washington, and Oregon give broad recognition to domestic partners and other states like Colorado and Maine give limited recognition.
In California some 18,000 couples marry between June 16, 2008 and November 4, 2008, when the window closed on same-sex marriage according to our Supreme Court's ruling in Straus v. Horton. Our office has assisted some of these couples in divorce in our offices since that time.
Even though it is not presently possible for same-sex couples to marry in California, California will recognize valid marriages and civil unions from other states.
On January 1, 2010, Family Code section 308 was amended to recognize any "marriage" between two persons of the same sex outside of California which is valid by the laws of that state so long as the marriage was contracted prior to November 5, 2008 (the date the California Constitutional Amendment was upheld prohibiting same-sex "marriage").
As to same sex marriages that are lawful in other states which occur after November 5, 2008, California will not allow them to be called "marriages" but will accord these couples all of the rights of California law concerning marriage.
This leaves open the question of what we call dissolutions between "married" same sex couples in California that were entered after November 4, 2008. Clearly in your case California recognizes a full-blown marriage in the traditional use of the term because you legally married in 2001 in Vermont. But for those married since 11/4/08 in another jurisdiction there is uncertainty which California Judicial Council forms (which are mandatory) be utilized because those marriages are not domestic partnerships (Family Code section 299.2), nor are they "marriages." Our office practice will be to simply use the old forms and modify them as necessary.
You may file a marriage dissolution in this state and request all orders that any divorcing couple could request; however, please note that California requires that you be a resident of this state for at least six months before filing for Dissolution but that you can opt to file a Legal Separation Petition at this time, obtain the necessary support orders, and then file an amended pleading for Dissolution once you perfect residency.
Good luck!
Thurman W. Arnold III
http://www.ThurmanArnold.com
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| April 23, 2010 |
| Do I need a COHABITATION AGREEMENT? |
| Posted By Thurman Arnold |
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Q. I am thinking about asking my girlfriend to move in with me. Should I be considering a Cohabitation Agreement and what would it say?
A. A lawyer's job is to give conservative advice that protects clients from both seen and unseen potential legal consequences relative to the circumstances that are unique to these client's lives. Family law attorneys are reminded every day that most nonlawyers never consider that their new (or old) relationship might one day breakup or dissolve and if so what the fallout might be in terms of property, debts, or even support obligations. People are particularly vulnerable for setting themselves up for future legal difficulties in the early stages of relationship. This is the time when they are least likely to seek family law legal advice but when they need it most.
I commonly encounter several sets of circumstances that justify executing cohabitation agreements, and which affect how they are written and what provisions to include:
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Protecting assets, income, and wealth of one party:
Where one partner brings into the relationship assets, debts, or an income stream which is proportionately greater than that of the other partner, the partner in the financially superior position may reasonably be concerned about protecting what they have. I call these "limiting agreements" because their aim is primarily to ensure that the other partner acquires no interest (or only specified interests) in property which is already owned or that is acquired during the relationship - typically through the use of joint bank accounts, joint borrowing, inheritances, or by just plain inadvertence.
Often one partner in these situations has a near zero net worth. The economic reality in our culture is that this is usually the woman, who may also be a custodial parent of a minor child and under economic pressure. The fact is that our culture values the contributions of partners quite differently depending upon whether that contribution is in the form of money, property, or services. People joke about being called 'domestic engineers' and we may talk about women not being employed 'outside the home.' Families are not merely emotional and social units, they are also economic units. Coupling enables people to specialize between themselves so that one person can devote a greater percentage of attention to the job marketplace, for instance, while the other can invest their energies in establishing and maintaining a stable and supportive home environment.
We act as though money is the more valuable contribution to relationship when this may not at all be true. Any sociologist will tell you that if we were to count the hours that most women spend taking care of the home (and especially children), which frees the man up to work for money, and then value this time at a reasonable rate, the economic worth of the non cash contributions by domestic engineers often exceeds the value of the wages earned outside the home by the working partner in most low to middle-high income partnerships (illustrated if you consider what it would cost some outside worker to perform these tasks).
Whether the monetarily disadvantaged partner is a man or a woman, this person's interest lies in avoiding limiting agreements or in having them crafted so that some level of financial protection exists. There are compromise solutions that can be achieved which afford these persons protections they would not otherwise have, which is good reason for obtaining guidance from a qualified attorney.
If partner A earns $50,000/year and partner B works part-time outside the home or not at all, such that his efforts at home help to free up partner A's time so she can devote her attention to competing successfully within the job marketplace, the partners' respective contributions in terms of hours may be the same. If it is similar on a fairness scale, then is it really appropriate that partner A should be solely entitled to a $10,000 savings account she accumulated during the cohabitation when partner B worked only in the home and so did not have access to the dollar wages that could be tucked away?
You don't need to agree with this philosophical analysis, although it is the modern view, but perhaps these examples make it clear that cohabitation agreements include moral, ethical, and fairness considerations which deserve attention. These can be negotiated and compromised in an even handed manner that is respectful of and sensitive to the dignity and relative contribution of both cohabitants. Truly, if two partners enter a relationship where the underlying assumption is that only the partner who works for wages is bringing value into it, this is not an auspicious beginning.
2) Protecting assets, income, and wealth of both parties: Many people who utilize cohabitation agreements have previously been married and divorced, and have ongoing responsibilities for children or aging parents. They cannot afford the economic consequences of another break up and they want the companionship and benefits of a committed relationship.
In many cases the partners may have substantially equal assets and liabilities, or their relative net worths may not be too disproportionate. Two-earner households are more common today than ever before.
I call this variety of cohab contracts 'roadmap agreements.'
In California persons who cohabit who are not married or who are not domestic partners have no rights or obligations between themselves under the Family Code, assuming they have no children together. Their rights or obligations, if any, are determined solely by contract - and if there is no written contract it becomes very difficult to determine what people intended at the time they acquired what they acquired or did what they did. All kinds of claims can be made about verbal promises, and verbal agreements are enforceable when a Judge believes they exist.
Unmarried partners who have not been protected by a written agreement have no right to claim an interest in the other partner's property accumulated during the relationship, and they have no inheritance or survivorship rights absent an existing will or trust. Common law marriage is not recognized in California, unless it was first established in another state which does recognize it.
There are very good reasons to carefully draft and execute cohabitation agreements beyond trying to exclude the other partner from making a claim if the cohabitation ceases. It may be helpful to create a template for how the relationship can be disentangled in an orderly and equitable manner once it ends; however, it can be very useful to have a roadmap about how certain activities should be handled even in an intact relationship. Knowing one's rights in advance and having a formula for confirming them is always a smart thing which can positively affect decision-making.
3) Creating Nonmarital Partnerships: Just as a cohabitation agreement can be designed to protect against creating unintended rights in the other partner, so too it can be positively used to create protections that would otherwise not exist under the law. These are generally called "pooling agreements".
If you create a business partnership or joint venture you do it with the expectation of generating profits, including the coequal sharing of an increase in the value of the partnership and whatever money is spun off and distributed from the partnership. Some people wish to do the same thing with their nonmarital cohabitation partnerships.
Is it any more wise to enter into a nonmarital cohabitation without any form of agreement than it is to enter a business partnership on a handshake? In these times lawyers must shake our heads in dismay when people proudly tell us that their word is their bond and that they make their deals on a handshake. While such sentiment is admirable, it is not realistic.
A cohabitation agreement can be used to specify what property and assets becomes joint and under what circumstances, what the proportionate joint interests are, what to do with debt, and what property is to become or remain separate as to one partner alone. It can be used to protect the partners in the event of death as to property that may be jointly owned but not jointly titled. It can create a structure for valuing and dividing assets that avoids litigation and high legal fees, not to mention hostility and resentment, upon termination of the joint living arrangement.
It can also be used to create certain rights and obligations of support under specified settings.
Whether family attorneys counsel a particular client to utilize a cohabitation agreement, as with prenuptial or premarital agreements, often depends upon who has - or who over time is anticipated to have - the larger economic power and financial resources in the relationship.
The obvious situation is where the economically better off person wants the security of the protections. The common assumption is that the person with wealth should always insist upon a cohab agreement, and that view is probably correct - the agreement, however, can become something much larger and more creative than simple property waivers.
Ironically, people with some degree of economic advantage often don't avail themselves of a cohabitation agreement because they feel embarrassed, uneasy, or frightened to ask the other about it, on the belief the other partner may be offended. In my experience people are only offended when the agreement runs in one direction.
If a woman with zero assets and little income seeks advice about how to structure her economic relationship with the man or woman she is about to move in with, a cohabitation agreement may or may not be in her best interest depending upon the terms. It may come as a surprise, however, to learn that she will probably be far better off in all situations with one than without.
If one participant in a joint living arrangement is obsessed with acquiring and keeping all of the marbles, you are headed for trouble anyway. For me it is always best to admit that there is an elephant in the room. By placing these concerns on the table there is a huge potential freedom to address them in ways which are ignored when there is no agreement. People can be guided into thinking about consequences they otherwise block out of their minds. This can nurture a positive beginning, rather than a beginning by default with neither person is talking about a multitude of what-if's. It provides an opportunity to honor both persons, and is not at all mutually exclusive with reasonable legal protections.
People rarely seek marital counseling outside the church or education before marrying. Similarly they rarely give much thought to how to structure their lives when they undertake living together outside of marriage.
Cohabitation agreements provide an amazing opportunity to consciously and mindfully embark upon a new relationship.
If you intend to share a household with a romantic partner other than only temporarily, my recommendation is that you always consider entering into a cohabitation agreement.
However, it is important that you locate counsel in your area who is not merely a traditional adversarial lawyer, because their resource toolbox for assisting you with all your issues tends to be relatively empty.
Thurman W. Arnold III
http://www.ThurmanArnold.com
4/23/10
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| April 14, 2010 |
| How Do I Get the Court to Order My Husband to be HAIR FOLLICLE tested? |
| Posted By Thurman Arnold |
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Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do I get a court order for drug testing?
A. It is not possible in California to force another parent or custodian of minor children to take a hair follicle test for drugs or alcohol absent their agreement to do so.
Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.
However, hair follicle testing will be ordered where both parties agree or stipulate to it. This is more common that you might expect.
Sometimes this occurs at a court hearing where the Judge turns to each party and says something like 'Mr. Jones, would you be willing to take a hair follicle test: More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court will turn to Mr. Jones and ask him if he will agree. 7 times out of 10, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up."
Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he looks guilty. Mr. Jones may have recently cut his hair short or shaved his head - which is a good reason to ask the Court order that Mr. Jones not visit a barber until the hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may be himself in denial and so might lie easily and from habit.
And, Mr. Jones may think that his hair sample will come back clean because he is not "using" or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.
Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body.
If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their addictions (the same ones that may have lead to the breakup).
I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before.
At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to because she had told me (in answer to repeated direct questions to her first) that she never used cocaine - even though the Court would not have otherwise ordered it.
To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.
The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.
If you have been using drugs, don't agree to a hair follicle test unless you are prepared to be completely honest.
It is possible to get a confidential hair follicle test from an independent laboratory before you write a declaration or go to a hearing, and then present your clean test to the judge at that hearing. If you find the test is positive for drugs, you don't need to share it with the Court or anyone else. But in that situation an ethical attorney will not let you make false statements either. You don't need to volunteer certain evidence, but once you make a statement it better be true.
By the way, I will not tolerate lying by my clients in my family law practice. Ethical lawyers will not aid and abet a client in making false or misleading statements.
In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges.
Thurman W. Arnold III
http://www.ThurmanArnold.com
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| April 14, 2010 |
| Will the Court DRUG TEST My Wife? |
| Posted By Thurman Arnold |
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Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.
A. Your argument for drug and alcohol testing of parents or others having custody or visitation with children is in California is found in Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical way to get drug testing was by the other party's agreement.
It is possible to convince a family court that the other parent should be tested for drugs or alcohol where you present sufficient evidence that there "is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." FC section 3041.5(a).
This evidence includes but is not limited to proof that the other person has been convicted in the past five years of the illegal use or possession of a controlled substance.
The other important statute you need to cite to the Court is Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation is in the best interests of children courts must consider evidence of the habitual use of controlled substances (non-prescription or otherwise) or alcohol - but first you must submit "independent corroboration".
In my experience what often happens when drug allegations are made is that Family Judges prefer to get the parties to agree to drug testing and only order it when they will not (or when recommended by family court services or a mental health professional). If the parties will not agree, judges may order the testing as long as there is some corroboration that a potential drug issue exists. I am always amazed that people who are using (who are "dirty" as we say) will agree to test when they may not need to because there is insufficient independent proof of the use of drugs.
Please see my blog on hair follicle testing.
TWA
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| April 13, 2010 |
| How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders? |
| Posted By Thurman Arnold |
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Q. My former spouse claims that I lied on my Income and Expense Declaration and filed a motion to set aside that order, and is now seeking more money. What are my rights?
A. This type of support modification can occur in two situations: Where it is alleged that you aren't paying enough because you committed some fraud or where you alleged you are paying too much because the other party committed some fraud in connection with an Income and Expense Declaration [FL-150] or some other sworn pleading filed with the Court.
If you are defending a support set aside motion, there are three bits of law you need to know.
First, there are important time limitations on when a motion must be filed before a Court will set aside a prior support order. As action based upon fraud or perjury must be brought within six months after the date on which the complaining party discovered or should reasonably have discovered the fraud or perjury. Family Code section 3691.
Second, the moving party must convince the trial court that all the other party has established is that it was a) inequitable when made or b) subsequent circumstances caused the the supported ordered to be inadequate or excessive, but that nothing more has been proved that that those grounds are insufficient by themselves. Family Code section 3692.
Third, on April 8, 2010, the case of In re Marriage of Zimmerman was decided and certified for publication and it is the first reported California appellate decision to squarely address these family code provisions. You will want to cite this case to the judge.
In Zimmerman a mother and former wife filed a motion to have all child support recalculated going back some five years, on the ground that the father had committed fraud and perjury with respect to prior order by concealing income in his earlier FL-150's. However, because of facts alleged in earlier pleadings she had filed with the Court a declaration making reference to these very same claims, the trial court was affirmed when it found that more than six months before she filed the Motion she had discovered or reasonably should have discovered the alleged fraud and perjury.
This is a very important case in this area because family law litigants are frequently claiming in their papers that the other side is lying or concealing information. This case stands for the proposition that it is unwise practice to even mention these claims prematurely, because if one does then the defending party will point to those statements - 'you see, she knew she had this claim two years ago.' It is always unwise to make statements to the Court about dishonest conduct on the part of the other side where there is no solid proof, yet, in any event.
Thurman W. Arnold III
http://www.ThurmanArnold.com
4/13/10
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| April 13, 2010 |
| What Are My Rights When I Believe My Spouse Committed Fraud in Their Income & Expense Statement? |
| Posted By Thurman Arnold |
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Q. What remedies do you have if you believe your spouse concealed income or lied about assets in their Income and Expense Declaration [Form FL-150]?
A. The FL-150 Income and Expense Declaration must be filed by each party in every California family law case involving requests for money (whether support or attorney fees), and it must accompany the FL-142 Schedule of Assets and Debts that is part of the Preliminary Declaration of Disclosure that must be exchanged in all action for dissolution of marriage or domestic partnership, legal separation, and annulment. In addition, Rule of Court 5.128 requires these Income and Expense Declarations to be current, which means they need to be updated so that they are, generally speaking, not more than 90 days stale.
Family Code section 3691 sets for the grounds and time limits for filing a Motion or OSC to set aside and correct an order for child support or spousal support which was obtained by your present or former spouse, or the other parent. You need to be very careful with these time limits, because they are shorter than other set aside remedies contained in the Family Code (for instance, Family Code section 2122 dealing with property settlements and judgments). It is important get the applicable code sections right, because different time limits apply for seeking relief from the Court.
Family Code lists the grounds for a support set aside as a) actual fraud; b) perjury; and c) lack of notice.
a) Fraud - this occurs when 1) the defrauded party is kept in ignorance or 2) in some manner other than their own lack of care or attention was fraudulently prevented from fully participating in the proceeding. This set aside ground is different from perjury. It applies to a situation, for instance, where you were told that your spouse was not seeking certain orders and so you failed to attend to the hearing only to learn later that in your absence much broader relief was requested than represented. It also applies any time information is provided by the other side that was materially false and when you relied on that false information not knowing that it was false (for instance, a party fails to disclose another job, much higher earnings, or property).
b) Perjury - where the other side has simply lied outright under oath in their Income and Expense Declaration or in the supporting verified application. Be sure to allege fraud as well since a perjurious statement is often a fraud.
c) Lack of Notice - this generally applies to situations where the other side claims you received notice of the proceedings but in fact you were not served. This can be difficult to prove where a proof of service was filed with the Court which itself is perjurious (i.e., your husband's best friend he claims he hand delivered to the documents to you on a day you were in New York).
This section applies equally to orders which were way too high based upon any of the above grounds as those that were way too low.
Family Code section 3691 will not help you in situations addressed in Family Code section 3692, where your support order was merely unfair or subsequent circumstances caused the order to be excessive or inadequate. Section 3692 is your first argument in defending a support order set aside motion.
In any of the above cases, you must file your motion within six months of the time you discovered or reasonably should have discovered the fraud, perjury, or reasonably adequate notice of the order.
Thurman W. Arnold, III
California Family Law Attorney
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| April 08, 2010 |
| What happens to FEES I deposited if I FIRE my ATTORNEY? |
| Posted By Thurman Arnold |
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Q. What are the refund policies if I reconcile with my spouse or switch attorneys?
A. Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention.
Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees. They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money. They are required to give a full statement and explanation of your fees and charges upon request. Refusal to do within 10 days or less may be a cause for State Bar Discipline.
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| April 08, 2010 |
| What happens to the FEES I give an ATTORNEY? |
| Posted By Thurman Arnold |
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Q. Where does the Retainer Deposit go?
A. Lawyers are required to place all unearned fees into a State Bar approved Attorney Client Trust Account. This is because the deposit does not belong to the attorney, it belongs to the client. It is only after fees are earned or costs are expended that the attorney may remove that amount of money from their trust account. Some lawyers do not maintain or use their trust accounts, and some will take the money upon retention as though they have earned it. This can result in discipline against the lawyer.
The importance of ensuring that you attorney follows State Bar practices cannot be overstated. Do not hire a lawyer that does not maintain a trust account. |
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| April 08, 2010 |
| What is a Family Law Retainer Agreement? |
| Posted By Thurman Arnold |
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Q. What is a Family Law Retainer Agreement?
A. A Retainer Agreement is a written contract between you and your divorce lawyer. The California Bar requires that any agreement for services where fees are to be charged in excess of $1,000 must be memorialized by a written Agreement, and the Client must receive a copy. It describes what types of services the attorney agrees to perform, office practices, billing rates and practices, and how any fee disputes will be resolved between you.
For the agreement to be enforceable by the attorney, it must state whether or not they maintain legal malpractice insurance.
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| April 08, 2010 |
| I've heard that CHILDREN can state their PREFERENCE at 13.... |
| Posted By Thurman Arnold |
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Q. I've heard that children can state their preference at age 13, is this true?
[NOTE: THIS BLOG CONTENT IS LARGELY SUPERSEDED BY REVISED FAMILY CODE SECTION 3042 WHICH TAKES EFFECT 1/1/11 - T.W. Arnold, 12/3/10]
A. Not as you pose the question. This is what Family Code section 3042 says:
"Wishes of child to be given due weight; Preclusion of calling of child as witness
(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.
(b) ..., the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences."
The threshold question is always going to be whether the child is of a sufficient age and capacity to reason to form an intelligent preference and there is no bright line rule or specific age on the subject. One can make generalizations for instance that some children nearing the age of 12 or 13 or 14 have a sufficient capacity, but that is not automatically assumed. It depends on each child. You can imagine that the child's opinion of their own capacity to reason is not determinative, nor is your opinion. Children may be subject to conditions or "disorders" that affect the characterization.
Commonly where a preference must be expressed, it comes through the medium of a mediator, the child's therapist, or a forensic therapist or psychologist. Most judges are extremely reluctant to take testimony from a child, even in chambers, especially on routine matters like preferences (as opposed to situations where a child is alleged to be a victim of some form of abuse and so may need to be questioned). In Indio, the family court mediators will often meet with children upon request. There always remains a fear that one child or the other or both is actively coaching the child - another reason why child's preferences as expressed should be given "due weight."
So, my advice to you is this: Consider what you propose carefully. Try to work through it with the other parent. Attempt to understand the root causes of a child's stated preference, and whether they are independently reasonable - or even true, since of course your son loves you and may be reluctant to leave you at the end of the summer.
And, certainly, where objective facts exist that strongly argue for a change of custody, the child's preference may tip the scales in one direction or the other.
Thurman Arnold III
4/8/10 |
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| April 08, 2010 |
| How do COURTS decide to award JOINT CUSTODY? |
| Posted By Thurman Arnold |
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Q. How do courts decide whether to award joint custody?
A. Family Code section 3010 provides that a mother and a father "are equally entitled to the custody of the child."
However, Family Code section 3020 sets forth the California legislative declaration that the chief concern of the State in with regard to custody issues is the "best interests" of the minor children. Lawyer's and judges refer to this as the "BIC" (best interests of child) standard. As a matter of public policy, BIC always trumps parental rights and interests; of course, BIC is a moving target. Family Code section 3011 sets forth a non-exhaustive list of factors that bear upon the BIC.
Section 3020 is an extremely important statute nonetheless, because it also expresses California public policy to (a) "assure the health, safety, and welfare of children" and (b) to "assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in best interest of the child, as provided in Section 3011."
Here it is important to comment that when a court makes a custody determination, it is required "upon the request of either party," to issue a statement of the decision explaining the factual and legal basis for its findings. Family Code section 3022.3.
So, the court must make a decision, when parents cannot agree, based upon the evidence of what is in the child's best interest. Along these lines, there are certain presumptions that also apply which will affect the outcome of the BIC determination. Examples include a history of domestic violence by either party (Family Code section 3044) or habitual drug or alcohol abuse (FC section 3011(d)). In those situations the Court must actually state why it granted joint custody to a parent who is guilty of abuse, or is a continuing substance abuser, and those reasons may be hard to find.
Thurman W. Arnold III
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| April 07, 2010 |
| When can I file for LEGAL SEPARATION in CALIFORNIA? |
| Posted By Thurman Arnold |
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Q. Can I file for legal separation in California if I just moved here from Arizona?
A. In order to be entitled to file an action for legal separation, a spouse does not need to be a resident of the State of California when they file; this is not true for divorce. To be legally entitled to file a dissolution proceeding here, you must either already be a California resident temporarily living elsewhere, or you must have been physically present in this state for at least six months.
For example, assuming Mrs. Smith from Idaho moved to California two months ago and now wishes to dissolve the marriage in this State, she has not yet met the California residency requirements for divorce and if she files an action for dissolution it will be denied - especially if Mr. Smith objects that she is not a resident of this State. But perhaps Mrs. Smith is in immediate need of spousal support - she is fleeing domestic violence by Mr. Smith who is a raging alcoholic - in that case, even though she is not domiciled here and has not been here for at least six months, she can file an action for legal separation and obtain temporary support orders and possibly attorney fees against Mr. Smith, so long as there is a basis for California to assume jurisdiction over Mr. Smith once he is served.
After the time has passed (6 months) for Mrs. Smith to establish her residency here, she is entitled to amend to the Petition to now seek a divorce. In the meantime, she has been protected. (While a California Court can always dissolve a marriage, in order for property or financial orders to be valid as against Mr. Smith, California must have jurisdiction over him by way of his presence here at least at time of service, his consent to jurisdiction, or other legally sufficient contacts with this state).
For more information, please view our practice page here.
TWA |
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| April 07, 2010 |
| How do I FIRE my ATTORNEY? |
| Posted By Thurman Arnold |
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Q. How do I fire my attorney?
A. You are free discharge your attorney, and terminate his or her services, for any reason and at any time. Attorneys cannot require that you first pay off your bill, or that you reimburse them for expenses (including any costs associated with copying your file) before they will withdraw. In California this is accomplished with the Courts by both you and your attorney signing a Substitutions of Attorney which is then filed with the clerk of the Court where your case is pending. Simply download this form, fill it out, and take it to your attorney's office for their signature. Usually they will get it filed and send you a "conformed" copy (i.e., one that bears the filing stamp of the court).
If you do not have a pending case, you need simply write your lawyer an email or letter telling him to cease all efforts on your behalf.
She must return your entire file, except her notes, within 10 days of a written request. The California State Bar will discipline lawyers who fail or refuse to comply. She must also give you a final accounting on his bill within that time, and return all unused fees to you. Unless you have a true flat fee arrangement, she cannot keep the balance of your retainer and must turn over to you all unused funds within a reasonable time.
One important bit of advice, however: Be careful how you time firing your lawyer. He or she is "on the hook" insofar as the Court is concerned so long as they remain your attorney of record. There may be reasons why you should wait until after a hearing takes place before signing the Substitution.
In the event you choose not to sign a Substitution of Attorney - where for instance it is the attorney who is firing you - that attorney remains on the hook until an Order for Withdrawal is signed by a Judge, which can only occur after a Notice of Motion is filed by the attorney to be relieved as your counsel. The motion process takes at least 25 days and you are entitled to oppose it. The lawyer must provide a declaration stating that the attorney-client relationship is broken between you, but they are not required to say why (for instance, that you lied to them or were uncooperative). Unfortunately, however, I see many lawyers who sloppily do tell the court something that may hurt your case or the court's perception of you. Frankly, if they do that it may be grounds for a State Bar Complaint.
We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!
Thurman W. Arnold III
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| April 07, 2010 |
| When I get MARRIED, how do I avoid my husband's DEBT? |
| Posted By Thurman Arnold |
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Q. If I marry is it possible to avoid any of my fiance's debt liability?
A. Yes. First, your separate property doesn't become liable for a spouse's premarital debt simply by marrying. But community property as it comes into being does.
Secondly, to the extent you or your spouse will incur debt during marriage, prior to marriage both can agree to eliminate or restrict the creation of community property as between you. This is accomplished through a prenuptial or premarital agreement. Essentially you agree to restrict or eliminate the creation of community property in the first instance, since that will remain liable for debts incurred prior to (with some exceptions) and during the marriage, and so you can ensure that your separate property remains protected.
None of this applies to debts you jointly incur - the joint credit card, the jointly purchased car, or the jointly refinanced home. This is why creditors try to insist that both spouses sign loans.
But you can modify your behavior in order to protect yourself by not signing. It is possible to enter a post-nuptial agreement which achieves substantially the same thing, although it won't necessarily change the character of debt incurred prior to its signing but it may nonetheless eliminate future community debt by eliminating community property. Remember, as between the two of you, you cannot affect third party's rights who are not parties to your post marital agreement, and to do so may be considered a fraud upon creditors which means the agreement may be set aside and voided.
Thurman W. Arnold III
Desert Cities Divorce |
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| April 07, 2010 |
| Am I LIABLE for my husband's NURSING HOME DEBT? |
| Posted By Thurman Arnold |
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Q. Am I liable for my husband's nursing home bills?
A. Yes, under most circumstances.
Community and both spouse's separate property is liable for the other spouse's "necessaries of life" while the spouses are living together, and even when they are living separately - unless they are living separately by agreement within the meaning of
Family Code section 4302. If this occurs at a time when there is no community property but the other spouse does have separate property, there is a right of reimbursement for a period of time (i.e., if the other spouse dies there is a time limit on seeking reimbursement).
Note that spouses each owe a duty to support the other out of their own separate property if there is no community property. Family Code section 4301.
"Necessaries of life" include food, shelter, clothing, and the expenses of a final illness.
Thurman W. Arnold III |
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| April 07, 2010 |
| Am I LIABLE for my husband's GAMBLING DEBTS? |
| Posted By Thurman Arnold |
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Q. My husband won't stop gambling. Am I liable for his gambling debts?
A. The community property that the two of you own is liable as to satisfy his gambling obligations, assuming there is any left. Whether you are liable to the Indian Casino or Las Vegas hotel beyond your share of the community depends upon whether you have an independent contractual relationship with them - i.e., a line of credit in your name.
As between you and your husband, unless you consented to his gambling he may owe you (if your separate property is somehow attached to satisfy the debt) or to the community estate a reimbursement or indemnification right.
If he is a professional gambler and this is his "work" the outcome would be different. The outcome may also depend on whether the community benefited from the gambling, i.e., if winnings were used to support the community, then a court may deem it fair to share the obligation as to "losings".
This right of reimbursement would similarly exist if he squandered money on drugs, or prostitutes, and so on - assuming you can prove it and trace the money! The question is whether you consented and ripens when you can establish that his conduct violated fiduciary duties owing you. One never knows, however, how a judge will treat this on a case by case basis but the law if moving towards greater accountability.
If his gambling does amount to a breach of fiduciary duties owing you as a result of your marriage or domestic partnership, you have substantial remedies. Try our search at the top right of the page to learn about those topics.
Thurman W. Arnold III |
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| April 07, 2010 |
| Q. Who is liable for debts that we assign between us in our divorce settlement? |
| Posted By Thurman Arnold |
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Q. Who is liable for debts that we assign between us in our divorce settlement?
A. After property is divided incident to divorce or legal separation it is no longer community property; it is the separate property of the recipient. This separate property always remains liable to pay your own debts no matter when they were incurred. Even if that debt is assigned to the other spouse in the divorce division, you remain liable on the debt as between you and the creditor. Family Code section 916(a)(1).
Your separate property and what you receive at the time of the division is not liable for the other spouse's debts, whether incurred before or during marriage, and you are not liable for those debts unless the debt was assigned to you in the settlement.
If your property is nonetheless applied to satisfy your spouse's debts by a creditor, you have a further right of reimbursement against your former spouse, plus interest and possibly attorney fees.
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| April 06, 2010 |
| DCSS INTERCEPTED my TAX REFUND with my new Husband. |
| Posted By Thurman Arnold |
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Q. The district attorney's office intercepted our tax refund to pay past due child support. If we divorce do I get any of this money back?
A. You might.
Thistax refund was community property and although the government in this case had the right to take what was owed from the community, the community has a right to be reimbursed from the spouse who owed the debt if and only if the debtor spouse had separate income available at the time to pay the debt (as it arose) but which was not applied to satisfy the debt. Family Code Section 915(b). |
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