Recent Posts in Child Support Category

Special Circumstances in Child Support Cases
Involving an Extraordinarily High Earner

IRMO Cryer (8/29/11) 198 Cal.App.4th 1039

Jon and Sarah were married, producing a son together, and later divorced. Sarah subsequently had a second child by a different marriage, which also ended. Although Mom had primary physical custody of the child with Jon for which she received "substantial" child support of $10,000 each month and a 65 % "timeshare", she began to suffer some difficulties that first resulted in Jon's ex parte application to modify the prior agreed upon orders to sole custody in his favor in May, 2009. Jon alleged that she had left his child unsupervised. The family law court denied that ex parte request but admonished Sarah not to leave her children unsupervised. Later that same month CPS became involved when her younger child suffered an injury at Sarah's home. A dependency proceeding was filed against her by the Department of Children and Family Services, which resulted in each child being placed with their respective fathers. There is no commentary in the decision about whether the fathers are working together to preserve and protect the sibling bonding.

When a dependency proceeding is filed by child protective services there are strict rules governing procedure that are generally designed to move the proceeding quickly towards determining whether jurisdiction properly exists, in order to ensure that the public policy favoring reunification with the problem parent is honored. However, Sarah's dependency proceeding moved extraordinarily slowly. In the meantime Jon battled her in Judge Pellman's courtroom. In addition, she was also likely defending against the claims of her second husband over custody of the younger child. We don't know what the exact alleged facts are over the circumstances giving rise to the dependency proceeding, but it is obvious that Sarah had her hands full with "two and a half men" - two former husbands and a young child.

Once his son was placed into his custody, Jon filed an application to modify the $10,000 in monthly support to zero since, after all, the child had temporarily been placed with him. Did he hope this might be the killing stroke (coup de grace) that would bring Mom to her knees, forever? There are litigants who feel that if they seize upon the other party's moment of weakness they will remain in power for the remainder of a child's minority, and a lawyer might reasonably advise this tactic under the aegis of "zealous representation". Jon's extreme request was his first mistake. When people want it all they are sometimes sorely disappointed.

Mother argued that $10,000/month was no burden to Jon because that amount was only 3 percent of his income at the time. She urged that the outcome of the dependency proceeding was uncertain, temporary, and subject to change and that without a steady child support order she would have no money to pay her mortgage, car payments, or any other bills. She pointed out that such a result could never serve the child's best interests.

This is where an outstanding trial judge makes all the difference, because superficially Jon's contentions were reasonable.

Prior to the hearing the parties exchanged income and expense declarations. Jon's "stated income" was alleged as $327,000 monthly when averaged over three years, he held $7 million in liquid assets, and monthly expenses of $29,000. By the way, if people want to go public about their affairs, litigation is the right choice. Sarah had "negligible" assets and overhead expenses of $10,000 monthly, not including attorney fees.

A "guideline" child support order using the "Dissomaster" based upon mother's reduced timeshare would have resulted in her favor of a modified amount of $1,141/month. Sarah argued she would lose everything if that was her only income.

The matter was heard on November 2, 2009. Judge Pellman declined to reduce Jon's child support to zero, even though Sarah had little custodial time under the pending dependency court orders, but she did reduce it significantly from $10,000 to $8,000 monthly. The trial court noted that since Sarah's custody arrangement could be modified by the dependency court in short order (which was expected to be the situation) and DCFS could liberalize Mom's visitation schedule at any time, and therefore found that the minor's best interest was best served if the boy could return to the same home that he had shared with his mother prior to the proceedings, and further that it was important for both the mother and child that she have the ability to have regular and consistent contact with him. She ordered the father to pay $20,000 in attorney fees to Sarah's attorneys.

Jon was not satisfied with this ruling. He immediately filed a motion for reconsideration together with a separate Order to Show Cause seeking an accounting of how all child support funds he'd paid had been used, alternatively requesting that these funds be placed into a trust account for the 'direct benefit' of his son. Evidently he believed that paying a mortgage, and having a car, only benefited Sarah and not the boy. Judge Pellman denied his requests (after making some technical corrections to her orders) and awarded that Sarah receive another $5,000 in attorney fees, which was likely only a portion of what she actually incurred.

Three months later Jon filed supplemental authorities prior to a review hearing that had been set, arguing that the dependency proceedings had still not be resolved and that Sarah's visitations had not been "liberalized" as the Court had anticipated. Further, he argued that Sarah wasn't looking for a job and that she was the one benefitting from the child support payments and therefore the Court should stay child support until such time as Sarah's timeshare was increased by the dependency court. This would have had the effect of "starving" Sarah out and really speaks volumes to the level of resentment that Jon was exhibiting - made ever more poignant for us by reflecting upon the degree of privilege from the extraordinary earnings that he enjoys. Again, a trial and appellate court would be reasonable in questioning his motives based upon all the economic circumstances, and in protecting the disadvantaged party consistent with the law. Which is exactly what happened in both courts. As a further expression of his overreaching (or that of his lawyers), Jon filed a new income and expense showing $474,861 in monthly earnings that averaged his income over the prior three years. While it is true that there is no fixed rule in what span of time courts review in determining income, still they are required to look to relevant evidence. Often times the prior 12 months provides this yardstick. 

Sarah's counsel rejoined that Jon's income over the past 12 months was $791,666/month. Sarah was apparently the tick on the back of the elephant. In addition, Sarah's visitation had been liberalized to include home visits. Sarah argued it would be nice for the boy to have a home where these visitations could occur. Also, she had monthly expenses of $13,271 and no income beyond CS.

On May 10, 2010, Judge Pellman ruled that no changed circumstances existed from the time of her earlier orders to modify support further. There still was no "exit order" from the dependency court. The proceedings had not resolved. Moreover, the finding was unavoidable that Sarah would lose her home without support monies to pay the mortgage. The judge ordered Jon to pay another $40,000 in fees to Sarah's attorney.  

Family Code section 4057(b) is an important provision that cuts both ways in terms of adhering to or departing from "guideline" support. That section states that the amount of child support that is presumed under our state-wide formula may be rebutted by showing that the amounts otherwise rendered by the guideline "would be unjust or inappropriate in [a] particular case." Increasingly attorneys for prime time parents are directing trial Courts to this section to support their claims that when custody is cut-off with the other parent, or severely restricted, that support should be zeroed out. For instance, the argument is frequently made, and sometimes accepted, that where the low earner parent has a de minimis timeshare that would otherwise result in some child support to them based upon the parties' respective incomes, that the de minimis timeshare parent should not receive child support because the prime time parent bears the substantial bulk of the financial burden. The problem with this analysis is that child related expenses for living accommodations are a fixed expense. Marriage of Cryer implicitly recognizes this reality, and Judge Pellman apprehended the paradox clearly.

Jon apparently made this argument - he told the appellate court that Judge Pellman had abused her discretion because "he had nearly total responsibility for the child." Indeed, Justice Boren agreed that "under normal circumstances, such a deviation from guideline support would be an abuse of discretion." But given Jon's income, these were not normal circumstances but not necessarily for the reasons that Jon urged. "The trial court was faced with a pending and uncertain dependency case over which it had no control...." "The trial court also faced the strong possibility that visitation and custody arrangements could change quickly,..." "Furthermore, while one parent enjoyed an extraordinarily high income and could easily afford to pay monthlyl child support of $8,000 or $10,000, the other parent had essentially no income, and would be unable to maintain a household of the sort to which the child was accustomed absent substantial support." Therefore, Judge Pellman did not abuse her discretion. 

The Court noted that although the child support formula, "a complicated algebraic" equation, is often referred to as "guideline" the term is "misleading. Instead, the formula yields "presumptively correct" numbers in all cases which may be rebutted by the particular circumstances of the parties and of the children. In this case the guideline presumption was rebutted consistent with the state policies that:

• Placing the interests of child has been legislatively declared to be the state's top priorty
• A "parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life
• Each parent should pay for the support of children according to his or her ability
• "Children should share in the standard of living of both parents and child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children."

Here "an order that resulted in [the] child's spending time with his father in an opulent abode and time with his mother in a low-rent apartment would have conflicted with principles of Family Code section 4053."

Moreover, while the father "may have found the situation unfair, the primary focus must remain on the child's wellbeing, not the parents' feelings" about money. The revised $8,000/month child support order was only from 1 to 2 1/2 percent of Jon's mnothly income. Judge Pellman's order therefore also served to minimize the harm that might inure to the parties' son had each parent merely supplying living conditions based upon their respective incomes, without help from the other. Finally, the appellate court dismissed Jon's argument that he should not be obligated to pay $8,000 month where the mother's Income and Expense declaration showed that she only paid $4,999 in monthly housing relating expenses. The trial Court had discretion to look the broad view of the parties circumstances and was not required to fix a number based upon any one element of their total expense package.

Irmo Cryer is also an important case for ordering attorney's fees to financially weaker parties. Jon argued that the initial award of $20,000 was more than the mother's attorney had asked for in her moving declaration, but Mom's attorney made an oral request for a greater suma that the hearing based upon fees that had increased since the moving declaration had been filed, and her papers had noted that further fees would be incurred. Next Jon argued that he had won a motion for reconsideration that made him a prevailing party, and that he should not therefore been required to pay Mom's fees. Not so said the appellate court, "[b]ecause of the importance of ensuring that the parties both have the ability to present their cases effectively, attorney fees may be awarded against a prevailing party in family law proceedings."

I have had the great good fortune to have met Judge Pellman, and applaud her efforts and her well reasoned trial court decision!

Working with Family Court Judges

I recently attended the AFCC (Association of Family and Conciliation Courts) Conference in Orlando. Two Canadian jurists put on a useful workshop entitled "Dealing With Difficult Judges" and kindly gave their permission to share their materials with you. Many thanks to the Honorable Carole Curtis and to the Honorable Roselyn Zisman - both family court judges within the Ontario Court of Justice system. I summarize their observations and suggestions here, and add a few of my own I. would be grateful, and it might be beneficial to many of us, if you would weigh in on this useful topic by submitting comments!

As these two bench officers freely admitted, judges like all people can be difficult and reactive at times, and it can be quite challenging for attorneys and pro se litigants to know how to prepare for, and best behave within, the often edgy atmosphere of family court. This tension, if not understood or managed correctly, can have negative consequences to the legal consumers for whom family courts exist to serve. My intention is not to criticize the judiciary, since being an effective judge requires vast reservoirs of equanimity and knowledge, but to have a frank discussion about how lawyers and self-represented parties might consider presenting their cases - or in working with cranky judges - in ways that are dignified and productive. My hope is to improve the civility and professionalism of the family court experience for all affected, and to help unrepresented parties to have a fairer access to justice.

Here are some pointers for how not to aggravate your family court judge or commissioner and a few thoughts about what to do if that happens, despite your best efforts. The opinions expressed herein are not one size fits all. I also want to start a dialogue about how to make the job of family law judges easier for them, or - to put it another way - to discuss a bit about how we might help them to help us.

Suggestions for Interacting With Family Court Judges

• Rule #1: Be Prepared

Judges have little patience with attorneys, and pro pro litigants, who aren't prepared when they enter the courtroom. Many litigants don't seem to know what they are asking the court to do, why they are asking for it, and what the best legal or factual grounds are for the orders requested. Courts everywhere, but particularly here in California with the passage of Family Code section 217 (which requires live testimony hearings upon request), are grossly overburdened. Judicial resources are not sufficient to meet demand in these budgetary times, and this places a pressure and premium on directness and efficiency. Economic limitations can also make judges a lot crankier than if they had reasonable and adequate time and resources to manage their caseload and calendars.

Depending on County size, wealth and population, California Family Law Judges typically have between 20 and 35 or more matters on their morning calendars. In the afternoons they are often holding evidentiary hearings for the more conflicted OSC/Law and Motion litigants, or have blocked off afternoons for trials. If they are to move through these calendars by the end of the morning, brevity and efficiency becomes exceedingly important. When do we expect that they will find the time to read what is contained in possibly more than 30 files before taking the bench to listen to oral presentations and cross-examination? For the more diligent judges the answer may be evenings and weekends. Which is often when hard working lawyers likewise find the extra time that they need to prepare for hearings and trial.

Therefore, one of the biggest mistakes that agitates judges is parties or lawyers who aren't prepared and can't present their cases with clarity. If, as a lawyer who is directly paid to identify and communicate the justness of your client's position, you don't appear to care overmuch about your client's case then why should our judges care? Lack of preparation, especially for lawyers, is a cardinal sin.

• Rule #2: Be Prepared For This Particular Judge

In jurisdictions with direct calendar assignments, where a judge is assigned to a case for all purposes or for all purposes possibly until the case is reassigned for trial, learn about the particular bench officer(s) who presides over your case. The more you know the better. Information allows you to make useful assumptions about a particular judge's attitudes and policies.

As Judges Curtis and Zisman note, the best judicial officers are predictable and consistent in their rulings. "A judge's value to the public as a judge is in direct proportion to the ability of the lawyers who frequent the court to predict how the judge will deal with a particular issue." I find this to be so true in my personal experience. Lawyers who know how judges tend to rule on a given issue can with confidence set their client's expectations realistically. Armed with such knowledge, both sides are in a better position to have productive settlement discussions that avoid a "crapshoot" and the associated risks and expense. Moreover, they don't waste time potentially infuriating bench officers with weak arguments that judges may made known that they rarely accept.

Lawyers who are active practitioners in any given court usually have good insights into local judge's attitudes. They may also be aware of information about a judge that is not generally available to the public, like their expertise, practice focus, and reputation before they took the bench. Knowing that while a lawyer your judge participated in a case that generated a published appellate decision on a move-away case, for instance, could provide you a wealth of ideas on how to tailor your presentation. Likewise, knowing whether a judge has been reversed is useful for making sensitive presentations.

Pro per litigants should consider observing a judge going through her calendar over the course of one or more days. You will learn tons about their judicial attitude from watching them in open court, and indeed you may witness other parties get scolded or reprimanded for missteps and so avoid the same mistakes. A simple but classic example is the family court litigant who brings a small retinue of family members who are there ostensibly to provide familial 

• Rule #3: Notify the Court If the Case Will Be Continued the Day Before

Sometimes one or both attorneys or parties intend to seek a continuance of a hearing, possibly because they want to discuss settlement but often because one or both are not ready to proceed or has late papers to submit.

Different judges have very different attitudes towards continuances, particularly where they have already invested the time reading the materials and then are faced with a continuance request. Lawyers who know that a case will not proceed are well advised to contact the courtroom clerk at least a day in advance to give a head's up - otherwise, they may wind up with a judge who justifiably feels "put out" and therefore cranky. Some allow self-represented parties to give advance notice of agreed upon continuances, but the other side will need to confirm it. Often messages must be left on the clerk's answering machine, and you may not know in advance whether they were received or acted upon.

Where both sides have attorneys and a particular judge is known to permit it, counsel should always let the court know one or even two days in advance that the hearing is not expected to proceed that day.

• Rule #4: Look At the Local Court Rules, If Any, and the California Rules of Court

Some counties or individual courts have local rules; many do not. Most judges have their own rules and styles, often never to be found in written form. It never hurts to ask the Court clerk, when the judge is off the bench, whether that courtroom follows any specific preferences, customs, or rules of procedures. 

The state-wide source for procedural rules impacting California Family Law (and Juvenile cases) are the California Rules of Court, beginning with Rule 5.100. Rule 5.118 is one of the immediately most important, since it deals with initiating common OSC and Motion requests for custody, support, etc. These rules apply to all family law matters in all California courtrooms.

The Riverside County Local Rules pertaining to Family Law cases can be found here. Start with Title 5. I discuss these in more detail below. The Los Angeles Family Court Rules can be accessed here. Basically you ought to go to the County website where your case is filed and look for the local rules for that particular venue. If they exist you will be well served to review them for relevant tips and local policies. 

• Rule #5: Talk to the Judge, Not the Other Party or Lawyer

The time to discuss your case or argue with the other side is before you enter the courtroom. It drives judges nuts when two lawyers, two pro se parties, or any combination of them begin to argue at counsel table as though the judge was not present. Keep your focus on the judge, and generally avoid looking at the other party except for emphasis. Never address them directly.

A very important related concept is that if you bring witnesses or support people in the courtroom, tell them in advance to keep control of themselves. This means no interruptions, no head shaking or head nodding, no gasps, and no agitated movements. It is natural that the people your bring to the hearing have a some degree of investment in the outcome. However, when these people act in an uncontrolled fashion, that may affect the court's evaluation of you. Thorough lawyers always remind clients and the support people who accompany them to maintain a even demeanor and not to speak unless spoken to.

• Rule #6: Never Assume the Court Has Read the File, and Never Ask

Judges can be easily overwhelmed at times for any number of practical or personal reasons. Never assume the Court has read your pleadings, but at the same time it is pointless to ask him if he has. Asking the question not only embarrasses the court, if they answer that they have not read it and you wind up getting what you wanted, you are inviting an appeal since appellate courts in California have reversed trial courts for ruling on matters where they've admitted on the record they've not read the file.

Instead, start your presentation as though the Judge has not read the materials. Most judges will interrupt you to advise you when they have read it. Be nimble. At the same time, understand that the court only has enough time to listen to summaries of information, not the entire case. You need to know in advance what your highlights are soundbites are, and they should be presented in as orderly a way as possible. Having outlined these in advance is very helpful in the heat of the moment, where you become distracted by some exchange you did not expect and must return your focus to your goals. Outline your highlights on a notepad in a way that a given sentence triggers your memory of the remaining points you wish to make.

• Rule #7: Make It Easy for the Judge

• Rule #8: Avoid Head-Butting With the Judge (and the Other Side)

Whether or not a judge seems difficult or cranky, it does not help to get into a head-butting contest with him or her because you just can't win it. Head-butting may be a "kiss of death" for an advocate; the issues themselves have degenerated into an ego contest, and if you are in court to serve your ego you will likely have an unpleasant outcome. Remember, people are watching, including court staff. The Judge not only knows that she is the supreme power in the courtroom, she has her dignity to protect. Confrontations with judges suggests a battle between equals, and you are not equal. It also implies a winner and a loser. If you head-butt with a Judge, you are asking them to prove to everyone present who is in control. That usually ensures that you will be shown to be the loser for the simple reason that finding in your favor may then imply that you are in control.

Head-butting might well begin with an attitude on the part of the judge. If this occurs, move into "damage control." Immediately lower your tone. Avoid flailing hands or arms. Speak evenly, slowly, and respectfully. This may defuse the situation before it becomes impossible to redeem. As Judges Curtis and Zisman put it "You must do whatever you can to end this contest. Consider a retreat, whatever that means in the circumstances. Move your reaction into this range...:  be calm, be measured, be focused, and be polite (be unfailingly polite)." With a particularly difficult judge, the hotter it gets the calmer you must become.

A cautionary note here: Many judges I know respect an advocate or a person who will stand up to them, and not simply fold because there may be some debate. So much depends upon your tone and style even as you perhaps stubbornly, but calmly, present your arguments or evidence. Hence, do not take these suggestions as meaning that if the judge seems to disagree with you that you should become silent. It is how you convey your message that often matters most.

Be persistent, unless it becomes obvious that the Court has heard enough. Often judges will tell you this.This can become a real problem if you have not had the opportunity to make "a record" for purposes of a possible appeal (something you never want, but sometimes must consider).  If you are foreclosed from making a record, you should note that respectfully before quitting.

Similarly, it is usually pointless to argue with a judge once they have ruled on any given matter, but if you feel there is more to say and you are uncertain whether the judge has heard as much as she will, you might try "Your Honor, before the court moves on, might I add one more thing?" 

• Rule #9: Never Lie to the Court

It is amazing to me how often attorneys will intentionally misstate facts to the court, or create inflammatory arguments that has little basis in fact. I am sad to tell you this happens a lot, and in fact this is one reason why divorce attorneys may be viewed as bottom feeders. Yet, this is only a small, if vocal, segment of the legal practitioner population. Similarly, parties in relationship disputes are highly motivated to misrepresent information for more directly obvious reasons. 

As a advocate, one of the most important things that lawyers possess is their reputations. Judges who will talk about it will candidly admit that they are every bit a catty lot as the next person or profession. The talk in chambers, they talk in lunchrooms, they talk in restaurants, they talk in meetings amongst themselves. One of the common topics is about the lawyers who come into their courtrooms. Their views about particular attorneys' reputations can be infectious within the judicial community, which is not to suggest that they do not attempt to remain impartial on a case by case basis. It is true that sometimes it feels that attorneys who too freely spin the facts get away with it. This is one reason I am a proponent of monetary sanctions against attorneys directly, something I suggest in my Davenport Blog. One consequence of unaccountability is that opposing sides, and unrepresented parties, take their cues from the lawyers they come into contact with and mimic bad behavior of those they observe. The behavior of legal professionals matters. terrible message to send. There are so many reasons why it is imperative that lawyers not be deceitful.

Never lie to the Court, whether you are a lawyer or a party. Once a judge gets fixed on the idea that your information is untrustworthy it will pervade his view of you within your case, and is likely to haunt you. There are subtle and not so subtle ways of punishing litigants by imposing outcomes that can be catastrophic for your life, from fixing alimony or support orders above your level to pay to depriving you of time with your children. And, be advised, lawyers love it when the other party lies. This is exactly what can be seized upon to win their client's case, sometimes far more dramatically than when people just admit the weaknesses in their positions and move on.

• Rule #10: Don't Tell the Judge it is Obvious She's Already Made Up Her Mind

It does happen that lawyers and parties may find that the Court has prejudged the case before any oral presentation; an example being the circumstances identified above where the lawyer or litigant has lost all credibility. But at other times it can be very difficult to understand why a bench officer may seem to have already decided your case before you open your mouth.  

This is a tough one there may not be much that you can do about it. The advice of judges Curtis and Zisman is to stay calm and focused, and just keep going. Don't respond with something like well, "I can see your honor has already made up your mind," and don't otherwise communicate this with your body language, glares, or tone. This too can be a tall order. But on balance neither the client nor their case can be served in this fashion. For lawyers, my experience is that clients better appreciate the fact that you remained professional rather than snotty with the judge, because they will watch in real panic as their spokesperson begins to lose his or her poise. Similarly, they will know you did everything you could where you don't pour accelerant on the fire.

Judges Curtis and Zisman suggest that lawyers and parties need to know, under such circumstances, when to fold. They also need to know how to protect the record - that is what is said on the record that is recorded by the court reporter. As with the rude and abrasive judge discussed below, a good record for an appeal may be your only hope especially in jurisdictions that video or audio record the hearing, since tones of voice and sarcasm are often lost in a written hearing transcript. And, beware, I once had this happen with an extremely difficult Juvenile Court Judge (retired some years now) and so made a request for the written transcript (which was all that was available), and when I received it I found that major portions had been edited out entirely. Obviously the judge had instructed the court reporter to falsify the transcript, but how was I to prove it? I did manage to get a Writ of Mandate on appeal that removed the judge from future hearings in the case, and then won it in front of a much better judge at trial. BTW, proof that a judge has doctored the hearing transcript would almost certainly result in judicial discipline if proved, but that is can of worms I do not recommend since if your attack on the court fails that judge might actually make it their mission to ruin an attorney or their case.

• Rule #11: Don't Duke it Out With the Rude and Abrasive Judge

Unfortunately I witness this more than I care to admit as an observer at courthouses, although very rarely in my cases these days and one possible reason is that I usually know when to shut up. Judges Curtis and Zisman state "Some judges are rude, aggressive, even abusive, for no apparent reason, or at least none that justifies this behaviour. It is extremely important for the lawyer (or the party) to be calm, and to remain calm, polite, [and] focused." I quote them directly to reinforce that I am not one lawyer griping about judges; similarly, I have friends who are retired bench officers and they will admit that such conduct occurs, and even that at times they regrettably engaged in it. 

The goal of lawyers in such situations is, above all, to defuse the situation. This may seem an impossible task, particularly when it is our job to protect our clients. If the behavior is really so over the top that our clients are being abused we must object to such behavior.

All I can recommend to nonlawyers is that they not get sucked into such exchanges with the court, but that at the same time they politely and firmly stand their ground.

• Rule #12: Ideas for Coping With Judges Who Do Not Know Family Law

California matrimonial law is immensely complicated. Many lawyers who regularly practice in family court really have little clue what they are doing, in part because the simpler contests arise over and over again and many lawyers learn enough to deal with these simple situations but would be highly stressed on more complicated situations. Likewise, many family court lawyers have very little actual trial or even deposition experience. They don't know how to cross-examine witnesses. They only have a glancing familiarity with rules of evidence. Some of these lawyers actually go on to become judges. Others may be quite skilled in the criminal arena, for instance, where they were once prosecutors or public defenders. These judges were once real trial lawyers, but that doesn't mean they understand family law. Others may have been quite senior civil litigators who nonetheless rarely if ever handled these types of cases. 

Curtis and Zisman point out that this situation is actually more easily remedied than some of the others discussed here. They suggest that particularly when you know that a bench officer is not overly familiar with this area, that you adjust your presentation to ensure that you covering the basics. State what you are asking for, identify any statutory authority, and discuss the legal standards that apply. One of the reasons I blog so much is to popularize information to empower nonlawyers. Lawyers have lots of legal treatises to subscribe to and review (when they bother); the public generally does not have these so nearly accessible. I hope this website aids you. However, please remember, my blogs and articles are intended merely to be educational and it is impossible for me to guarantee their accuracy under any fact pattern. You have to do your own work and draw your own conclusions.

• Rule #13: What to Do With the Judge Who Hates Family Law

This is usually a function of judges who don't know family law although as you might suspect, a jurist who hates family law is likely not going to bother to learn it. The best way to overcome this problem is to be polite, be brief, and educate the court about what you want and why you are entitled to it. If you have no idea as to either, the judge who hates family law may become an abusive judge as well. Politely and firmly resist being rushed. But get your points in clearly.

• Rule #14: Cite Recent Authority Whenever Possible

Thurman W. Arnold, III, C.F.L.S.

Q.  I'm separated from my ex-husband, and we are in the process of a divorce. He has asked me to file jointly on a 2010 return, and I am wondering if this is a good idea. Any suggestions?

Trudy

• the court
• the party's accountant
• some other financial consultant providing assistance with the case
• anybody else the court specifically approves

Q.  I have a question about proposing legislation to fill a loophole in the Family Code section 4058 definition of gross income, as it relates to net ERISA disability benefits.  Under Family Code section 4058, gross income includes disability benefits, (including net, untaxable benefits).  Under ERISA, if an insurer denies payment of disability benefits, the insured must file a quasi-administrative appeal of the benefits denial decision to overturn the denial.  If that quasi-administrative appeal is successful, benefits are reinstated, but the insured cannot recover attorney fees expended to successfully prosecute the quasi-administrative appeal.  (If the quasi-administrative appeal fails, one may appeal that decision in federal district court, obtaining attorney fees if successful.)  Because generally, ERISA preempts state law regarding insurance,  one may not sue the insurer for bad faith denial of ERISA disability benefits.

In my case, an insurer denied ERISA disability benefits, a decision I had reversed on quasi-administrative appeal under ERISA.  That appeal cost me 45% of my net disability benefits, as a contingency fee.  The family court commissioner found that the contingency fee merely increased my expenses, but the contingency fee did not reduce my gross income under section 4058, in spite of the fact that I only received 55% of the benefit I would otherwise have received.  Because this result is inconsistent with the definition of gross income under section 4058, subd. (a)(2), (in which a business proprietor's income is defined as gross receipts minus business expenses), inconsistent with appellate decisions defining gross income as income that is actually received, and imposes a double burden on those who lose disability benefits, requiring that child support be paid from unreceived income, I would like to propose legislation to amend the Family Code to fix this inconsistency.  The proposal would merely define section 4058 gross income as including disability benefits, less the attorney fees and costs expended to obtain those benefits.

Do you think that such a change to the Family Code is warranted, and, if so, can you suggest mainstream family law associations that might be willing to consider supporting such legislation?  There are thousands of ERISA disability recipients in California, and practically every employer-sponsored disability insurance benefits policy in California is governed by ERISA.  I appreciate any information you can give me.

Best regards,

John

John:

This is a penetrating question, a very specialized inquiry, and an unfortunate story - thank you for taking the time to bring it to my attention. I do wonder if I have all the facts, however, because it is also surprising.

My initial response is that the court must have erred, much as you point out.  You mention appellate court rulings that also suggest this - but I understand the point that 'who can afford an appeal' and that these matters are best resolved by providing clear direction to trial courts to they don't make mistakes in the first place (assuming this is indeed true under existing appellate decisions). LOL, eh?  Have you filed for Reconsideration?

It is also a question I've not thought about before, having never faced the issue in my practice. I will have to give you what may be a shallow response, although I plan to look into it and possibly improve this blog soon.
 
One solution would be the changes you propose, or perhaps there needs to be some clarification in Family Code section 4058 that "net benefits" should be charged to the recipient rather than simply "receipts." This could then ignore the attorney fee deduction language component, if legislators were troubled by that remedy, but might open a larger can of worms without language that applied it to disability benefits only. But I don't know if it is the best answer, since letting people deduct attorney fees from income is a broad and difficult task and could create interpretational problems and factual controversies. 

Perhaps legislators might liker the vagueness of adding "net" to "receipts," since trial courts could then evaluate it on a case by case basis. I note that Family Code section 4058(a)(1) has "actually received" language, except that it is within wording that relates to spousal support income from a third party. If the "actually received" language was applied to the overall subparagraph (section 4058(a)(1)), this would resolve the problem. I would have to review the legislative history of section 4058 to offer more.

Family Code section 4058(a)(2) gives trial courts discretion to deduct an arguably similar class of write-offs or deductions from gross income (i.e., "expenditures from the operation of a business") for self-employed people.  Family Code section 4059 speaks in terms of "net disposable income" and an amendment there might be of use - but, 4058 is the biggie for trial courts dealing with child support issues.

As to recommendations about what family law organizations might be available to champion a legislative change, unfortunately other than AARP and your local California assembly person, I have no intelligent recommendations today. But I will endeavor to look into it.  I am hoping in time that legislators will in time read my blogs!

BTW, there may be further facts to your situation that influenced the outcome, since it does seem hard to comprehend. For instance, do you have new-mate income that the court considered in some fashion? Are family members paying for any of your living or residence expenses and was this attributed to you? Was other income imputed? I am assuming that you are tax exempt on this disability income stream, and might the court put you in the support calculator in the nontaxed income column?

A final note - if the time is not up, you might appeal this ruling. Appellate decisions that create unfair results (i.e., refusing to charge you with the net) are an alternate but expensive route to change inequities in our system when they exist, since they are courts telling the legislature - "if you want a different result, you change it."

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

Q.  My divorce seems like it has stalled.  My wife operates our family business, we own several properties including a commercial building and she collects the rents, she isn't cooperating with me on custody on our kids, and I need money to pay my attorney.  She is controlling this case, and I am getting nowhere.  Any recommendations?

"Ed from Temecula"

TW Arnold
10/18/10

Q.    My husband has not updated his I & E for six months.  I know he is not reporting his income fairly.  How do I buy time so the Judge doesn't decide my support rights based upon outdated information?

A.  So here is a secret tip for my blog readers.  FL-150 Income and Expense Declarations (the I & E you reference) must be updated every 90 days in order to be current.

After some continuances on any support application, whether child or spousal support, these declarations become 'stale.'  Whether you need to stall for time or just want an honest representation from the other party, it is essential that all information be "current".

California Rule of Court, Rule 5.128(a) states as follows:  "'Current" is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue."

Any competent judge will listen to your argument that 'facts have changed' and require the other party to update their information. 

If you cite this rule you will impress them with your devotion to the law! 

You are entitled to a continuance (which you should use well, since it may be the last one).  Now may be the time to hire a lawyer....

Good luck!

One problem is timing - if you file an OSC then the clerk sets the hearing date, which in most jurisdictions will be about the same time as your form interrogatory answers are due - and you can expect your ex to toy with you and so you may not get useful answers within the 30 days after you propound them.  When interrogatories are served by mail, they are due 35 days after mailed, plus the responding party can mail the responses and so this adds another 5 days. 

His answers may come in after the time your Reply to any Responsive Declaration must be filed and served, so you can't bring the quality (or lack thereof) or information contained in the responses to the judge's attention in a procedurally correct fashion.  I usually go with a Notice of Motion format where I want some discovery completed before the hearing - and set the date 60 to 75 days out to give time for the other side to have a reasonable opportunity to have gotten it done and to appear unreasonable or obstructionist if they have not. 

It never hurts to send out a set of form interrogatories because at least you can complain about the other party's failure/refusal to comply with their discovery obligations, which may win you a continuance or some bias against the ex. 

However, form interrogatories are extremely limited in their usefulness except when seeking general information in the course of a dissolution or legal separation action.  A better or additional practice would be to use a demand for production instead of or in addition to form rogs, or possibly special interrogatories if you can draft them properly.  You can use a Notice to Appear and Produce Documents at the hearing, assuming  you are looking for specific records.  I don't have that form up on my website and I'm not sure if there is a Judicial Council form for it.  Subpoenas to third parties can be useful in small jurisdictions particularly when those records won't be lost by the clerk's office, but third parties often ignore them and judges usually don't grant continuances based upon the lack of a response (for subpoean's, always demand that the custodian of records actually appear on the date and at the time specified rather than giving them the option of not appearing).

If you had a lawyer and if a lot of money was involved, you might consider a deposition.  They require only 10 day's personal service when the Notice is served personally, unless they include a document production request.  C.C.P. § 2025.270.

Finally, you might hit the "Other" box on the FL-300 and FL-310 application forms and specifically ask the Court to allow you to complete specific discovery before your application is heard on its merits, as in "I request an order permitting me to complete the following discovery (state it, but make the discovery as short and pin-pointed as you can) before this application is decided by the Court."

How this goes for you depends a lot on the personality of the judge and their custom and practices in managing their calendar.  If you have a reasonable and narrow discovery request, no good judge will preclude you from exercising these rights.

Finally, be careful not to draft your application as a sort of disguised motion for reconsideration.  If the Court feels you are just trying to take another bite of the apple from a recent hearing, unless you have material new evidence that wasn't disclosed by the other party you may not get much traction.

One more thing - I am assuming this set aside is a post-judgment application.  If you are in the middle of a dissolution, legal separation, or paternity action and no final judgment has been entered then you are free to do discovery and then file the motion afterwards or do both concurrently.  On the other hand, if there has already been a judgment and the set aside deals with an order that came as a result of a post-judgment motion either of you filed, then one route is follow my recommendations above.

Thurman W. Arnold III
225 S. Civic Drive
Suite 1-3
Palm Springs, CA  92262

760-320-7915
760-320-0725 (fax)

SBN:  107101

Website:  http://www.ThurmanArnold.com

Q.  If my wife is living with a male renter, and I suspect they are boyfriend-girlfriend, does this affect the amount of spousal and child support that I have to pay?


A.  The supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption affecting the burden of proof of decreased need for spousal support. FC § 4323(a)(1).  It has no impact on child support obligations, however.

FC § 4323 states:

As stated in Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12, the policy underlying section 4323 [former Civil Code section 4801.5]

Schroeder involved a post judgment modification of a permanent support order by the payor, not an initial pendente lite request by the supported spouse. The evidence was the former wife had been living with a man of the opposite sex for 18 months, that he didn’t pay rent, that he was regularly employed, that he did not contribute to utilities, but that he did contribute to joint vacations. The appellate court found those facts to strongly suggest a cohabitation. Even then, the issue on remand was not a termination of the support obligation but a determination of the value of the benefits incurred by the former wife which might reduce her needs.

Cohabitation has been loosely defined as not necessarily holding oneself out to be Husband and Wife, but is more than a simple roommate or "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship. Marriage of Regnery (1989) 214 CA3d 1367, 263 CR 243.

Marriage of Geraci (2006) 144 Cal.App.4th 1278 reversed a trial court failure to consider the effect of an admitted cohabitation lasting several years with the following comments:

* * *

In Marriage of Bower (2002) 96 Cal.App.4th 893,117 Cal.Rptr.2d 520 there were two permanent support modification hearings filed by the payor husband, one held in 1997 and the second in 2000. At the 1997 hearing the evidence was that the Wife was sharing expenses and living full time at a residence with a man described as a ‘roommate.’ The Bower court noted that the Husband had been wise in not appealing that order. However, by the time of the second application over three years later in 2000, there was evidence that she was sharing at least one bank account with her "roommate," and she even stipulated she was cohabitating.

Under those circumstances, together with evidence of an increased income from her employment, it was not an abuse of discretion to reduce the Wife’s spousal support and then terminate it at the end of one year.

Bower and those cases cited herein regarding cohabitation are dealing with modifications of Permanent Spousal Support orders. They all are based upon the "two can live more cheaply than one" theory or upon actual expenses of the supported party being regularly paid for by the cohabitant beyond loans and gifts. There is no reported case that upholds a trial court refusal to provide spousal support at the temporary hearing stage.  However, I suspect most courts will apply the presumption there as well.

The philosophy underlying the cohabitation statute is that parties who share a household and live in a meretricious relationship should not benefit by continuing to receive spousal support without consideration of the reduced need this sharing produces.

Finding cohabitation just allows for the aid of a statutory presumption to assist in the presentation of factual evidence. The effect is the same without the presumption even for mere roommates, as those contributions to the obligee's living expenses may also support a factual finding sufficient to modify spousal support since rent is income.

Nonetheless, cohabitation is offensive to some judges and they be willing to terminate the spousal support obligation instead of merely reducing it.

Note that once you prove a cohabitation the burden of proof shifts to the supported party to show that they still need support. That is their problem, not yours.  Nonetheless, if you can show a substantial reduction or the end of any need for alimony you would be well advised to present that evidence.

Finally, you are not entitled to know the income of the other party as new-mate income cannot be considered by the Courts. 

For domestic partnerships, even though the statute speaks in terms of opposite sex couples it is highly unlikely that a trial court would not reduce or terminate partner support with a same-sex couple where male former partner is cohabiting with a male and so on.  Since 2005 the California Family Code is to be interpreted as applying evening to same sex couples.

If a homosexual (as opposed to bi-sexual male) is now living with a female should the opposite sex presumption be applied?  The answer would seem to turn on whether the relationship is romantic and/or intimite.  Similarly, if a former wife is now living with a female roommate and it can be established that relationship is intimate, then the same reasoning as in the above cases will likely apply.  We await appellate court pronouncements on these interesting questions.

A "deferred sale of home order" means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to the custodial parent of a minor child or child for whom support is authorized under FC §§3900 and 3901 or under FC §3910. It is authorized whether or not the custodial parent has sole or joint custody. Such an order is made to minimize the adverse impact of dissolution of marriage or legal separation on the welfare of the child.[FC §3800(b)].

If one of the parties requests a deferred sale of home order, the judge must first determine whether it is economically feasible to maintain [FC §3801(a)]:

• The payments of any note secured by a deed of trust, property taxes, and insurance for the home during the period the sale of the home is deferred; and
• The condition of the home comparable to that at the time of trial.

In making this determination, the court must consider all of the following[FC §3801(b)]:

• The resident parent's income;
• The availability of spousal support, child support, or both spousal and child support; and
• Any other sources of funds available to make those payments.

The legislative intent behind these determinations include [FC §3801(c)]:

• Avoiding the likelihood of possible defaults on the payments of notes and resulting foreclosures,
• Avoiding inadequate insurance coverage,
• Preventing deterioration of the condition of the familyhome, and
• Preventing any other circumstance that would jeopardize both parents' equity in the home.

A judge asked to consider the issue will consider the following in determining whether a deferred sale is necessary to minimize the adverse impact of dissolution or legal separation on the child. [FC §3802(a).]  Factors considered in exercising discretion include all of the following [FC §3802(b)]:

• The length of time the child has resided in the home;
• The child's placement or grade in school;
• The accessibility and convenience of the home to the child's school and other services or facilities used by and available to the child, including child care;
• Whether the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child;
• The emotional detriment to the child associated with a change in residence;
• The extent to which the location of the home permits the resident parent to continue employment;
• The financial ability of each parent to obtain suitable housing;
• The tax consequences to the parents;
• The economic detriment to the nonresident parent of a deferred sale of home order; and
• Any other factors the court deems just and equitable.

• If you can, try to research CCP § 1008, including looking at some legal treatise or the reported appellate decisions that mention it
• New or different facts don't generally include things you forgot to mention, unless you have some really credible explanation of why you forgot
• You must explain to the Court what you learned, how and when you learned it, why you didn't learn it earlier, and why these new or different facts matter enough that the Court should render a different outcome.  If the other party withheld facts that you became aware of only after the hearing, you need to describe your reasonable diligence in having attempted to first get all the facts
• New facts are not the same as different facts.  Be specific
• Telling the judge you just think she was wrong is rarely helpful - judges know they will be wrong some of the time, and they are trained as much to just make a decision as to get it right (clearly they want to get it right).  Most of us don't like being told we are wrong and that is rarely a useful persuasive tool.  Instead, focus on the justice or injustice of the situation and be humble
• Explaining that you made a mistake without more is also risky, because lawyers and parties do make mistakes in presenting their cases but the law favors finality in decision-making.  Your  mistake needs to have been a reasonable one. 
• Always consider combining your reconsideration request with a request for relief under Code of Civil Procedure § 473, which is a very important statute that covers relief from orders or judgments that result from your inadvertence, surprise, mistake, or reasonable neglect

In your situation the question will be:  If you knew 10 days before the hearing that your time had been cut back, why didn't you mention it?  If you did mention it, then the Court considered your evidence and ruled against you, so this would not be new information. 

Also, how different would the outcome have been if the Court had considered or known of the cut backs in your work?  For instance, if those cut backs are partial and your income is 15% less than the Court supposed, this may not seem so important to the Judge that she thinks she needs to correct the unfairness of the result.  If it is 40% less, she might.  There are no hard and fast rules that can be applied with consistency.

It is quite common for clients to wind up hiring attorneys after they attempted to handle their case on their own, and it blew up at the hearing, and now they need desperately to get more or better information in front of the judge.  It is very difficult to "un-ring the bell." 

When these things happen they are a good lesson of why the adversarial court process is to be avoided whenever possible, and of the importance of finding and listening to a competent lawyer early on in your case.

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?

Q.  How is child support calculated in California?  I have heard about "Guideline Support" but am wondering what this means?

A.  In 1993 California adopted a Statewide Uniform Guideline to come into compliance with a federal mandate.  (Family Code section 4050).  This followed wide variability of orders and a prior failed attempt to ensure predictability.  Its effect was to greatly increase the monies available to children and to begin to end gender bias in assessing support.    Family Code section 4052 requires California court Commissioners to adhere to the uniform guidelines and to "depart from the guideline only in special circumstances...." 

Family Code section 4053 lists principles to be followed by the Court in implementing the guidelines.  This is a statute worth reviewing, and using to remind family court judges of what our State child support policy is.  These include the directives that:

(1)  A parent's first and principal obligation is to support their minor children "according ot the parent's circumstances and station in life."

(2)  Both parents are mutually responsible.

(3)  The guideline must take into account each parent's actual income and the level of responsibility for the children.

(4)  "Each parent should pay for the support of the children or according to his or her ability."

(5)  The interests of children are the State's top priority.

(6)  Children should share in the standard of living of both parents.  Child support may therefore be appropriately used to increase the standard of living of the custodial household to improve the lives of the children.

(7)  Disparities of living standards in both homes, particularly where both parents have high levels of responsibility for raising the children, should be minimized through the use of guideline child support orders.

(8)  A parent having primary physical responsibility for the children (a term that is nowhere defined in the Family Code) is presumed to be contributing a significant portion of their available financial resources to the support of these children.

(9)  The guideline is intended to encourage settlement between parents by creating predictability.

(10)  The guideline is presumptively correct in all cases, and ony in special circumstance should child support orders be less than guideline.

(11)  Child support orders must reflect the greater standard of living and costs of living in California as opposed to other states. 

California Family Code section 4055 sets forth the formula for assessing guideline support.  Don't even bother to look at it, you will need to be a mathematician or logics teacher to understand or explain it.  While gross income numbers (or imputed income) are used, the guideline tax effects this income so that net income is generally what is determinative - however, this complicates doing the math.  The percentage of parent's income allocated to children is called the "K" factor, and this number moves depending upon how many children there are.  It assumes, for instance, that 26% of the joint income of most families is spent on families with one child, and 60% where there are three children.  Forturnately these calculations are done for us through computer programs.  The most common are the Dissomaster and Xspouse, which I will explain further in another blog.  Riverside County in Indio utilizes the Xspouse.  The Xspouse is a spin off from the people who devised the Dissomaster, after they had a parting of the ways.

Child support always takes precedence over spousal support, or personal expenses.  Relative timeshare between the parents is a major factor in using the formula - the higher the noncustodial parent's timeshare, the less they pay. 

Unfortunately this means in practice that there is much legal wrestling between parents about timeshare that has nothing to do with the children's best interests but often everything to do with economic warfare.  I write about this in separate articles detailing Collaborative Law processes where we attempt to refocus parents on best interests rather than legal rights (per the guideline formula, for instance) so that primary parent's (often mothers) will give up more custodial time and fathers will pay a little more for this time and then actually undertake using that time (as opposed to having it on paper in a court order, but generally ignoring the increased responsibilities).  Please see this link to our Collaborative Divorce Team.

Importantly, even when courts order child or spousal support to women, studies have shown that most children who are entitled to child support from their fathers never receive it (Huang, Mincy, and Garfinkel, 2005). There may be a number of reasons for this. One determinant of fathers meeting these obligations is their ability to pay.  Researchers have found that when child support obligations exceed 35% of a father' sincome, he is less like to comply (Meyer and Barfeld, 1996).  Lower earner fathers are generally required to pay a higher proportion of their income in child support in child support than higher earners, which pressures the poorest members of our society (Huang, et al., 2005).

Women in heterosexual relationships, as single parents (or child-caretaking partners), are at greatest risk of becoming systemically impoverished (Strong, et al., 2008). Following divorce, women are principally responsible for both child-rearing and their own economic support. At a minimum a woman may suffer a significant decrease in her financial condition. Studies have shown that a single mother's income may decrease by twenty-seven percent or more.  (Peterson, 1996; Smock, 1993).  [Please contact me if you want the actual citations to these studies].

These realities may or may not interest you.  They do affect children and parents in very deep ways, nonetheless.

In any event, now that you have the background I will provide more detailed information on how the Xspouse and Dissomaster programs work in practice very soon.  Try using our search engine at the upper right corner of any page on this site and you will find those articles when they are up.

TWA

Thurman Arnold is a child support attorney practicing in Riverside and San Bernardino Counties, including the cities ranging from Blythe, Indio, Indian Wells, La Quinta, Palm Desert, Rancho Mirage, Palm Springs, Desert Hot Springs, Joshua Tree, Hemet, San Bernardino and Riverside, CA.

Q.  I remarried in August, 2009, and my new wife is a doctor.  She has one child from her prior marriage and I have two.  I am still paying my former wife alimony and child support even though the kids we have together live at our home 40% of the time.  I have been hit hard by the economy and we largely depend upon my wife's medical income to make ends meet.  Now my ex is threatening to take me back to court to increase my support based upon my new wife's income, while my own income is down from when the court last decided it.  My new wife is upset at the idea that my ex can learn anything about the medical practice or income.  What should I do?

A.  If there has been a material decrease in your income since the time of your last order, you may safely file a support modification motion to lower your child support and to lower or possibly terminate your spousal support.  Whether that is advisable based upon your numbers has nothing to do with your new mate's income, and should not cause you to hesitate - but again, it does depend on the actual respective numbers between you and Wife 1, which you did not provide me.  You also need not worry about W1 filing a motion to increase (you can't stop her, but she will not win based on W2's earnings).  Maybe you should give her this link so she will think twice.

California law is quite clear that new mate income cannot generally be considered against you in ordering or modifying child or spousal support.  The controlling California Family statute is section 4057.5.

In the normal situation, Family Code section 4057.5 leaves the Court no discretion to consider your new wife's earnings, period.  You do not need to report those earnings on your FL-150 (Income and Expense Declaration). This is a statement of California legislative policy effective in 1993 when this section was added to the Family Code.  This is true for both spousal and child support.

However, section 4057.5 does contain an exception for the "extraordinary case" which the statute makes clear is intended to address situations where "where excluding that income would lead to extreme and severe hardship to any child subject to the child support award" or where "a parent ... voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income."  Even if the court were to find a severe hardship on the children of marriage number one, it would be required not to impose a severe hardship on your wife's child by reallocating her income to you for purposes of supporting your two children. 

In practice, so far, Courts almost never find facts sufficient overcome this clear statutory prohibition.  So far there is no published California appellate decision defining these extraordinary circumstances.  No doubt one day someone will so abuse this protection and hide behind it that we will get a reported decision that fleshs out how bad someone needs to behave before the protection is lost.  But "extraordinary" means really extraordinary.  In the average case, your new Wife has nothing to be concerned about. 

With regard to attorneys fee awards, however, there is authority for an argument that new mate income may be considered in granting or denying an attorney fee request, but the odds are against a judge doing that.

Incidentally, this section also applies to income from nonmarital partners as well as new spouses.  In one reported case (IRMO Loh), a trial court was reversed for inceasing dad's child support obligation after the mother produced photos of the father's "lifetyle" to show imputed nontaxable income in the form of his new girlfriend's contributions to him, since she paid for all his toys. 

The new mate question is a subset of the "imputed income" situations where a father or mother may quit work or reduce hours because they are relying on their new mate to contribute the difference.  That is not likely going to be an extraordinary case, but  W1 can separately seek to impute income to you on the basis that you have a higher earning capacity than you are exercising.  Earning capacity and imputed income is a blog for another day.  Also, I will mention here that another argument exists in favor of W1 that has nothing to do with the right to obtain the records or income of W2:  Equalizing the lifestyle's of the two households where yours is rich and grandiose and W1 is impoverished (an extreme example) pursuant to FC section 4057(b)(4).

The tax returns are privileged as they relate to your new wife's medical practice.  For instance, if she is a medical corporation (which I recommend be set up), she will almost never be forced to divulge those records.  Even as to your joint returns, you may be entitled to redact the information concerning your new spouse or have the Court review them in camera (meaning they are not turned over to the other side).  Your former mate is entitled to see your side of the tax returns, however, and they are not insulated from scrutiny simply because you filed joint with the Doctor Wife.  If you don't file jointly, your former wife will almost certainly never get her hands on your new wife's Married Filing Separately (MFS) returns.  Structuring things this way may or may not be advisable and you should consult a tax accountant.

An interesting twist here is that because you marry a higher, wealthy earner, your taxes actually increase because under federal IRS (and the California FTB), you are responsible for one-half of your new mate's income - and this is true even if you don't file jointly.  One case (County of Tulare vs. Campbell) has held that this additional tax you become liable for can form the basis for a reduction in your support because you have less net income available for support after the tax hit is deducted.  Hence, based on these tax consequences you may have an additional argument for decreased support - although a Court may try to deny you some discretionary offset to even the score since this feels a bit unfair to the spouse who is  primarily supporting the children and so lessen the downward modification.

The take-away:  So long as you are not playing games, have not intentionally reduced your income by relying upon your new mate's income, and there is no really extraordinary difference in the two households, your new wife's income is just not relevant and so it is protected.

The Tax Court rules that noncustodial father is not entitled to claim dependency exemption because custodial-parent M failed to complete Form 8332 releasing exemption and disso judgment, which father attached to return, does not contain substantially same information.

This is a really common situation, where a parent wrongfully claims a child or children on their tax return despite the fact the other parent is entitled to it that year according to the terms of a Judgment or Order.  It holds that despite the language of a Judgment, without Form 8332 signed and attached to the return, the IRS will not recognize the deduction. 

You still have your claims against the other parent, however, but now you have avoidable attorney fees or must waste your own valuable time enforcing your rights.

Click here to download IRS Form 8332.

TWA

Thomas v. Commissioner [full text] (1/19/10) TCM 2010-11, No. 17922-08 (Vasquez) 2010 WL 174107. When Arizona resident (F) was divorced from M in 6/94, their disso judgment awarded custody of their 3-year-old daughter (C) to M; F was awarded 30 days of visitation in summer, plus reasonable visitation in C’s state of residence. F was also ordered to pay child support of $400/mo through AZ T/CT. Disso judgment further provided that M would claim dependency exemption and child tax credit for tax year 1995 and succeeding odd-numbered years, while F would claim exemption and credit in even-numbered years if he was current in his child-support payments. M was required to execute necessary forms to permit F to claim exemption and credit, but only if F’s child-support payments were not in arrears.

In 2006, F was not delinquent in his child-support payments for C, who lived with M in Ohio. On his 2006 federal income tax return, prepared by CPA, F claimed dependency exemption and child care credit, but CPA subsequently notified him that his return was rejected from electronic filing because someone else claimed dependency exemption. CPA then filed F’s paper return, to which F attached copy of disso judgment, but not IRS Form 8332 exemption release. IRS sent deficiency notice to F, claiming that he was not entitled to claim either dependency exemption or child tax credit. F then petitioned U.S. Tax Court for relief, but TAX COURT RULES FOR IRS. Tax Ct finds that (1) per IRC §152(e), F, as non-custodial parent, was not entitled to claim dependency exemption unless (a) C received more than half of her support from M and F, (b) M and F were divorced, separated, or living separate and apart for last 6 mos. of 2006, (c) C was in custody of either M or F more than half of 2006, and (d) M, as custodial parent, released dependency exemption and F attached Form 8332 release or document conforming to its substance to his return ; (2) F could meet conditions (a), (b), and (c), but not (d); (3) disso judgment did not qualify as conforming document because it lacked Social Security numbers for M and F, M’s signature was not dated, and release of exemption was conditioned on F’s being current with child-support payments; (4) F could not claim dependency exemption; and (5) F’s being unable to claim dependency exemption meant that he was also ineligible to claim child tax credit. Tax Ct concludes that although it is sympathetic to F’s predicament, it is bound by statutes and regs as written.

Q. Who is responsible to pay child support in California?

A.  As used in the California Family Code, "child support" is an obligation owing on behalf of a child or an amount owing to a county for reimbursement of public assistance paid on behalf of a child. The concept also includes past due support and arrears, and includes maintenance and education. Parents have an equal responsibility to support their child in the manner suitable to the child's circumstances.  Family Code section 3900.

Q. Do grandparents owe child support?

A. Grandparents have no legal duty to support grandchildren, except in cases where they have a right to actual physical custody or court ordered visitation.

Q. What if I wasn't married to the Mother?

A. If you are the biological parent or otherwise become the legal parent of a child, you have a duty of support. However, it does need to be established that you are the bio dad or a legal or de facto parent before support can be ordered. In cases involving unmarried parents, this is typically accomplished through a [VDP Voluntary Declaration of Paternity] per FC section 7573. Often the DCSS (Department of Child Support Services) or other LCSA (local child support agency) files a paternity action to establish support for a mother who has requested support enforcement services or is receiving county aid.

If you are never identified as the bio parent for a child, you will not be found to owe support absent due process. However, you if you know are the parent but fail or refuse to support your child, you may have committed a crime.

Q. What if my parental rights have been terminated by the juvenile or family courts?

A. Parents whose parental rights have been terminated by court degree, or whose children have been adopted out, cease to have a support obligation (although they may continue to owe support for prior periods) as to those child after the date of the decree.

Also, there is no support obligation for an emancipated minor child.  But a child who has been emancipated by court order can become unemancipated upon their own application, or upon the county's application, if they are considered indigent and unable to care for themselves.

Q. What if my new spouse owes child support? Is this my responsibility?

A. The community property is liable to pay support debts predating your marriage, but there is a right of reimbursement.  Indeed, the community liable for all separate debts of either spouse. However, there is a specific right of reimbursement in qualifying situation as set forth in FC section 915.

Q. Who enforces child support?

A. A parent can enforce it. A guardian can enforce it. The county on behalf of the child can enforce it, and can enforce it on its own behalf to be reimbursed for monies paid to another on behalf of the child.  

Q. How are out of state child support orders enforced?

A. These are enforced pursuant to the Uniform Interstate Family Support Act. 

Q. What if my parents have been supporting my kids while I was in rehab?

A. You have no obligation to reimburse them absent either (a) an agreement to do so, (b) an existing court order to do so; or (c) the county has provided benefits, in which case the reimbursement is to the county.  FC section 3951.

Likewise, you have no obligation to reimburse the other parent absent one of the above.

Q. Can child support orders be made retroactive in a court proceeding?

A. Except when the county has paid benefits, or possibly where a third party has provided necessaries like food, shelter, or clothing for the benefit of a child living with you under certain circumstances, the earliest a support order can be made effective is the date any initial pleading is filed in a court proceeding.  FC Section 4009.

However, if you were not served with the papers within 90 days of that initial filing, support can only be ordered retroactive to the date a motion seeking support was filed.

Most judges will order support retroactive to the first or the fifteenth day of the month.  This means that if you file for support on April 2nd, your order may only go back to April 15 but if you filed March 27th, your order would become effective on April 1.  You should time your filing to maximize retroactivity.

To the extent your partner has contributed monies to your support voluntarily before the order becomes effective, they will usually receive a credit off-set against the support award for the time period in question (i.e., if support commences April 1, they will not likely receive credits for payments made prior to that time).  These payments do not need to be paid to you directly for the credit to apply, as where a mortgage or rent payment is made.

Q. How long does child support last?

Q.  My ex wife, who is getting child support from me, has twice claimed our daughter on our taxes. We are supposed to alternate each year.  I took her back to Court, and the Judge ordered that I get to alternate with her.  She keeps filing.  What can I do?

Q.  Can the property I owned before marriage be taken to pay for my husband's unpaid child support from his first marriage?

Q.  I have two children from a previous marriage.  I remarried two years ago, and my new spouse earns $8,500 month.  While my hours have been reduced during this recession and my monthly gross averages $3,500.  The ex is threatening to take me back to Court to increase child support based upon my new mate's income.  Can she do this?

A.  Of course ex-spouses can always take the other back to court, but that doesn't mean they will win.  We call these support modification proceedings.  In order to obtain a new order, she must prove there has been some material change of circumstances with regard to her needs, the childrens' needs, or your ability to pay a greater sum in support.

The key California statute on when and how new mate income can be considered is Family Code section 4057.5.  The basic rule is that courts cannot consider new mate or nonmarital partner income in the context of making child support or support spousal orders.  This means as a general proposition that your new wife's income of $8,500/month is not to be inputted into the support guideline formulas. 

There are two exceptions where new mate income may need to be disclosed and where it can be considered in setting child support:  1) Where there are "extraordinary circumstances" that would cause the exclusion of this income to create an extreme or severe hardship to a supported child.  However, if this hardship is shown, the court must first consider the effect of inclusion of new mate income on any other children including the new mate's children, and so that their interests trump the hardship to the child for which support orders are being sought.  2) By marrying somebody with high earnings, a spouse will pick up additional taxes based upon the other's income.  Since as far as the IRS and California Franchise Tax Board (FTB) is concerned, you are liable under community property laws for one-half of your new mate's income, regardless whether you file jointly, the added tax consequences upon this additional income can actually be the basis for a downward decrease in child support (County of Tulare v. Campbell) since there is less after tax income available to you from which to pay support.

There are very few reported California appellate decision on new mate income or which explain how FC section 4057.5 is to be applied.  In Marriage of Loh (93 CA4 325) a mother/former spouse convinced a trial court, based upon photos of the father's extravagant lifestyle (homes, cars, etc.) which were funded by his girlfriend's income and assets, to impute income to him for purposes of basing a child support award.  The appellate court reversed, stating "Evidence of lifestyle, particularly a lifestyle subsidized by a new 'nonmarital partner', is not a cheap substitute for proper discovery of income reported on tax returns."

In a very recent appellate decision (Marriage of Knowles (Oct. 2009) 178 CA4 35) a trial court was reversed after it accepted the former wife's argument that the community property income and assets of both he and his new wife should be used to determine his income available for support.  The trial court's mistake was include the half that belonged to the new wife, although it could have included just the half that belong to him.   There was no evidence of extreme hardship that justified considering the new mate's half. 

We’ve waited a long time for another case dealing with consideration of new-mate income under Fam C §4057.5. One of the few cases that has, In re Marriage of Wood (1995) 37 Cal.App.4th 1059 is cited here, but it came down in 1995. Neither the statute nor the cases provide any definitive answer regarding what actually constitutes either an “extraordinary case” or an “extreme and severe hardship,” although Wood seems to say that new-mate income can be considered where one of the parents is voluntarily unemployed or underemployed.

Rather than arguing for NMI (new mate income), a party seeking to have income assigned to a person who has remarried or is living with a nonmarital partner may find more success by arguing that income should be imputed to that spouse on the basis that they have an earning capacity which is not being realized.  For instance, if because your new spouse had sufficient income you chose to quit work or take a lower paying job it might appear you are shirking your support responsibilities.  Rather than charging you with NMI, a trial court could find that you had the ability to earn X dollars a month and so charge you for this phantom income by making that the basis for a support award.  Then, the community property (including your new mate's share) could be tapped to satisfy this obligation.

Incidentally, a California prenup can be an effective way to limit this exposure.

Q.  What rights do I have to permanent spousal support?

A.  Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages.  Lawyers and judges also refer to it as post-judgment spousal support, alimony, judgment spousal support, or long term support.

Unlike temporary spousal support, long term spousal support is only issued after a final judgment of Dissolution of Marriage or Legal Separation.  It is equally available to domestic partners.  Also unlike temporary support, it is not based on any computer formula or state or county guideline, but must be determined and fixed depending on the facts of every individual case.  If long term support is important to your future wellbeing, you are going to need an experienced support attorney.

There are several very important rules to keep in mind.  First, a marriage in California which lasts more than 10 years (defined as the time between date of marriage and physical separation), is "long term" marriage.  The general rule is that in marriages which are not long term, spousal support should not be payable for more than one-half the length of marriage - or to put in differently, the law presumes that the recipient spouse should be rehabilitated and so become self-supporting in a period equal to 1/2 the marriage.  However, this presumption becomes less important in cases involving older couples, especially where people can not be realistically expected to re-enter the work force, in cases where there children who remain minors, or where the party asking for support has a debilitating disease or disability.

There is no magic ratio for how long a former spouse might be ordered to pay long term support.  Each case depends upon its own facts, the quality of your attorney, and the attitudes of the family court judge.  Even in cases of long term marriages, the support obligation typically will end at some point in time.  However, if usually will not end on its own - meaning that when a trial court orders long term support it will reserve jurisdiction to continue to extent it, until some time when a party petitions the court to terminate support and a judge finally says "enough is a enough." 

Imputed income is often an important argument in long term support marriages, where one party convinces the court that the other party is shirking or failing to genuinely try to become self-supporting.  It is sometimes necessary to have the supported spouse evaluated by a vocational rehabilitation expert. 

There are four components to an award of of permanent support:  1) Amount; 2) duration; 3) substantive increases or decreases over time; and 4) jurisdictional step downs and ultimately a termination date.

Second, Family Code section 4320 is a critical support statute.  I have provided a link and uploaded it so that you may read it.  Essentially it sets forth all the factors that the court must consider in setting post-judgment support, and you will see that it is not an exhaustive list and the court can consider anything else it deems important to the decision.  Support factors include the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living established during the marriage, considering:  a) the marketable skills of the supported party, the job market for those skills, the time and expense required to train that party including education and b) the extent to which the supported party's present or future income earning ability is impaired by periods of unemployment or were incurred during the marriage to permit that party to devote time to domestic duties.

Another factor is whether the supported party contributed to the attainment of an education, training, license, career, or position by the supporting party. 

Another factor is the ability of the supporting party to pay, taking in account that person's earning capacity, income, and assets and standard of living.

Another very important support consideration is the needs of each party - including both. 

Another factor is the obligations and assets of each spouse, including the separate property which each has or gained upon the dissolution.

Another is the ability of the supported spouse to engage in gainful employment without interfering with the needs of dependent children in their custody.

The age and health of the parties is critical in some cases.  65 years of age is the presumed retirement age for adults today, and courts cannot order a person to continue to be employed beyond that age - but, if they make that choice, their income can be considered.

A documented history of domestic violence can affect the right to receive support or the obligation to pay it.

The tax consequences between the parties must be considered.

And, basically, as I said, any other specific facts that trend one way or another.

The three most common factors are the marital standard of living (MSOL), need and ability to pay, and the assets the parties end up with upon divorcing.

Courts cannot order lump sums for support.  Spousal support is generally taxable to the recipient and deductible to the payor, but there are very specific IRS requirements that must be met for this to actually be so.

Courts are required to state their findings on each relevant issue in writing.  In practice though, most people settle their divorce cases by way of settlement agreements.  Unfortunately, lawyers often leave out these findings so that when a court is asked, down the road, by the payor to terminate or decrease support, or by the payee to increase it, there is no map for the court to use to base its modification findings on.

If support is an issue for you either way, please hire a competent lawyer.  There are many attorneys moving into family law from civil practices who are clueless about these things.  Caveat emptor!

Q.  How is temporary spousal support calculated in California?

A.  In order to be entitled to spousal support, parties must be married or be registered domestic partners.  Spousal support (which is not usually referred to as "alimony" in California) is available in dissolution proceedings, actions for legal separation, and in connection with domestic violence applications. 

Spousal support orders may be temporary, or they be what is called permanent.  Different rules apply to how temporary support is figured than to permanent or long-term support.  I address permanent spousal separately.

Temporary spousal support is designed to preserve the status quo pending a final judgment.  Family Code section 3600 provides that during the pendency for dissolution of marriage or legal separation or in any proceeding where there is at issue the support of a minor child, the court may order the husband or wife to pay any amount that is necessary for the support of the husband and wife (subject to limitations contained in FC section 4320 and FC section 4325).  Again, parties dissolving domestic partnerships may also be awarded support.

Temporary spousal support has nothing to do with the length of the marriage.  Courts look at what the spending pattern was pre-separation and issues a spousal support award based upon need.  If there isn't enough money on the basis of need, then an amount is ordered based upon the higher earner's ability to pay.  A party seeking spousal support isn't deprived on the right to receive support even if they have income - the question is the relative income circumstances of the two parties.

Most California counties have formulas that determine temporary spousal support, but the two most important are Santa Clara and Alameda counties.  Essentially the spousal support formula for Santa Clara County - which is the dominant one - is as follows:  From any amount which is not allocated to child support, take 40% from the net income of the payor spouse, less 50% from the net income of the recipient spouse.  The resulting number is the temporary spousal support.  You do not need to have children to be entitled to receive spousal support.

As a practical matter, courts typically use one of two computer programs that generate these numbers:  Either the Dissomaster or Xspouse.  The Indio courts use Xspouse and the Santa Clara guidelines.

Into one of these programs are inputted the respective gross incomes of the parties.  If there are children of the parties, the custodial timeshare in percentages is inputted (because only a party who has physical custody for more than 50% of the year can claim the tax benefits of HH/MLA or head of household status, the programs require one to be considered to have 51% even in true joint custody arrangements). 

Only certain expenses matter for purposes of temporary support in California.  What doesn't matter at all is most personal expenses (like mortgage payments, utilities, debt).  This effectively ignores the entire debt structure of the parties at time of separation.  Health insurance, union dues, and mandatory contributions to retirement (i.e., typically not IRA contributions), and obligations existing to other minor children living in one party's home, or as to which an actual court order requires they make support payments, are also entered.  The support program 'tax effects' these numbers and figures out the net incomes of the parties.  It renders a number that tells the Court how much the higher earning spouse must pay for purposes of a court order.

Since the court determines the support obligation some weeks after a request for support is made (by way of Motion for Order to Show Cause application), it typically makes the support order retroactive to the date of the filing for the request.  Most courts order support payable one-half on the first and fifteenth of the month.  For this reason, if you file for support on the 5th day of the month, the court will not make support retroactive to the 1st but will start of the obligation on the 15th day of the month.

This might sound like temporary spousal support is easy to fix and who needs a lawyer?  This is not at all the case.  The final support numbers depend upon how much income the Court is attributing to each party.  Each is required to submit before the hearing an FL-150 Income and Expense Declaration.

For instance:  A husband's (and wife's) income numbers are usually but not always based upon historical earnings, and the California judicial council form (FL-150) requires both to set forth there total gross for the past 12 months and also the past month.  The legal assumption is that historical earnings are a reliable guide to future earnings, but this may not be at all true.  Especially in today's economy, historical earnings may not be indicative of what the income stream will be going forward.  This information needs to be credibly presented to the Court.

In cases where one party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses.  This is a common and complex area of dispute, because what is deductible for purposes of Schedule C accompanying a tax return according to the federal government is in no way binding upon California courts for purposes of figuring support.  If somebody works from home and charges part of the mortgage expense as a business deduction, that expense may be added back into the income stream as being available for support.

Another support battleground often involves imputed income.  What if one party refuses to work, or insists on working at a lower paying job?  Perhaps a support recipient believes they will get more money from their spouse if they have no job but if they tried to get one, they could?  What if one party claims that they aren't working and that no jobs are available?  Imputing income cuts both ways, and is extremely sophisticated. I will address another blog to it.

Incidentally, while only temporary alimony is calculated in this way, child support is always figured in this manner regardless whether there is a spousal support obligation.

Enforcing California Child Support and Alimony Orders

Wage Assignments

Support Contempt Proceedings

Writ of Execution/Receiver

Interest; Bankruptcy; Renewal of Judgments in Support Cases

Attorney's Fees in Collecting Unpaid Support

UIFSA in California

Child Support Civil Penalty

Child Support Security Fund

Department of Child Support Services Enforcement

Q.:  Is overtime a factor in considering child support?

Q.  My girlfriend is having our baby in September, but I don't know if I am the dad.  I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what.  Is this true?  What is she files a paternity action?

Keith S.

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Keith:

California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth. This is something that is presented to proud fathers at the time of a child's birth, along with information about legal obligations, and that they are asked to sign.  There may be a lot of guilt and confusion going on at this time. Hopefully there is simply pride.

The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children. It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it. Obviously, it is not always true and sometimes a man does not turn out to be the actual father. Sometimes he believes he is, and sometimes he is told he is.

Children need their biological parents; this is  critically important. Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.

BUT the signing of a VDOP has serious important legal consequences. It is equivalent to a Judgment of Paternity, which may only be set aside for a limited time. While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent. California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too. The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.

So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent. That has privileges and it has burdens. You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc. You will also have the legal financial burdens which I describe under my support obligations FAQ's. For a long, long time, and even possibly forever. 

Family Code section 7573 establishes the effect of a VDOP.   Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child. Otherwise, after birth, you have a 2 year window to seek paternity DNA testing and an order that you are not, in fact, the bio-dad. The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.

These are weighty matters.  In my experience, and in most judge's experiences, woman know who the dad is. Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad. I would never judge your girlfriend and have no opinion on what your status truly is.

So, do what your heart tells you you are the dad, fine. But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity! 

Best of luck and, hopefully, congratulations!