Recent Posts in Terminating Spousal Support Category
| April 02, 2012 |
| Is It Proper To Give A GAVRON WARNING Before the Final Judgment Is Entered? |
| Posted By Thurman W. Arnold CFLS |
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Q. Is it proper for the Family Court to give a domestic partner a Gavron Warning when I am receiving temporary partner support and we haven't divided our assets so that no final judgment has been issued in the case yet?
A. As you probably know, the same rules apply to registered domestic partners in California dissolution cases as apply to married persons. What we traditionally consider as "alimony" or "spousal support" is the same animal as partner support.
Marriage of Gavron was decided in 1988. The issue there was whether a trial court abused its discretion in terminating spousal support to a 57 year old wife based on her failure to become gainfully employed or to seek vocational training. The parties in
Gavron had been married for 25 years and shared one adult child. They separated in 1976, and judgment was entered in June, 1979. In the final judgment the court ordered the former husband to pay spousal support until further order of court. Husband evidently really resented the obligation, because notwithstanding a relatively fresh separation, in 1981 he went back to court asking to reduce the support amount by half and to have it terminated after one more year of payments. That request was denied.
In 1986 Husband returned to court seeking to lower the payments and an order that support terminate. The court refused to lower support, but did order that after another five months support would be fixed at zero with the court retaining jurisdiction to reinstate it, until the death or remarriage of wife. The evidence was that while Husband attended dental school early in the marriage, Wife held different low paying jobs (although she did work at the dental office for a time after it opened), on and off, during the marriage and afterwards. She contended that most of these jobs were "too physically demanding," and there was uncontested evidence that she suffered tumors on her feet and shoulder problems. She did not seek any kind of retraining after separation. She did own some significant assets - her house was free and clear, she had no debt, and she had real estate venture investments. Husband had remarried, and had used most of his 401k to buy Wife out at the time of the dissolution; his business was becoming more competitive, and the evidence suggested he was overburdened and himself closing in on retirement.
The trial court was not impressed with Wife's efforts to become self-supporting. In setting a zero support award, it stated: "Aside from demonstrating a lack of diligence, in regards to becoming employed, [Wife] remains highly improvident by relying on [Husband] for her sole support. She apparently has given no thought to the possibility that [Husband] may become incapacitated or meet an untimely demise. It should be noted that a marriage of twenty-five (25) years is not tantamount to social security. The Court is mindful that this is a lengthy marriage and that [Husband's] duty to support [Wife] will not terminate by the mere passage of time. Nonetheless, the [Wife's] failure to become employable or to seek training after so many years shift[s] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard."
The trial court was reversed. Essentially the justices found that nothing materially had changed (i.e., no change of the parties' circumstances as is required to modify most orders) between the date of the 1981 application to terminate support and the 1987 application - the parties' overall financial situations were much the same as in 1981.
The appellate court observed: "We recognize that it is in the best interests of both spouses and of society in general that the supported spouse become self-sufficient. Civil Code section 4801, subdivision (a)(1)(A) expressly directs that in determining the amount and duration of spousal support, a court is to consider as a factor the supported spouse's marketable skills and ability to engage in gainful employment. As the court observed in In re Marriage of Morrison, [citation omitted], 'It certainly may be inferred that by specifically setting forth this factor, the Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self-supporting.'"
The Court continued: "Nonetheless, the trial court here erroneously held that the wife's 'failure to become employable or to seek training after so many years shift[s] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard.' To the contrary, absent stated or reasonably undisputed prior expectations as to the supported spouse's future self-sufficiency at the time of the previous support order, after a lengthy marriage and an appropriate retention of jurisdiction to modify spousal support, 'the burden of justification is on the party seeking termination.'"
Finally it ruled: "Inherent in the concept that the supported spouse's failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant a modification in spousal support is the premise that the supported spouse be made aware of the obligation to become self-supporting. It is particularly appropriate here that there should have been some reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences. There was a lengthy marriage during which the wife was unemployed except at the outset. The wife also presumably devoted herself initially to the development of her husband's earning capacity, rather than to her own earning capacity, then to wifely and parental duties, and now to the care of her elderly mother."
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"The wife may have lacked the personal foresight to more diligently seek employment prospects eight years earlier in 1979 when the original support order was fashioned. Nonetheless, she cannot be penalized now, years later, because of an apparent lack of judicial foresight in not forcing her to focus on the drastic legal and financial consequences of the then-unrevealed expectation that she become self-sufficient."
This became the "Gavron Warning, " also known as a "Gavron Admonition." This rule is now set forth in Judicial Council Form FL-180, the Judgment of Dissolution, such that at the time of entry of judgment and whether it is actually read by the supported party or not, the Gavron Warning is deemed to have been given:
"NOTICE:
It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support."
Marriage of Tong and Samson (2011) 197 Cal.App.4th 23
Attorneys representing alimony payors want the Gavron Warning to be given at the earliest opportunity, so that they can argue to the Court early on and frequently that a supported spouse is shirking his or her responsibilities to be become self-supporting. Often this takes the form of an oral "oh, by the way, judge" type request in open court where a court is making support rulings. It is important to resist this request, and obviously if you are a payor (or represent one) it is important to urge that it be given. Some judges, usually those new to family law, can be persuaded to give the admonition on the record at an OSC type hearing in the early stages of the litigation.
I am not aware of any case authority that supports giving a Gavron Warning at the pendente lite (temporary) stage of the proceedings. The fact that it is found in Family Code 4320 and in the final judgment form are compelling evidence that both the legislature and Judicial Council view it as applicable only at time of trial, final judgment, or beyond.
Marriage of Tong and Samson provides good authority for objecting to a Gavron Warning prior to entry of Judgment. The case is one of the few that addresses the distinctions between "temporary support" and "permanent" (judgment) spousal support.
Family Code section 3600 governs the court's authority to issue temporary spousal support awards.
Family section 4320 governs judgment support awards. The two sections are very different because they serve different public policy purposes, and the support amounts as to each are theoretically also likely to be different (although, funny, oft times the amounts don't change much). The core holding of
Tong deals with how to treat severance pay for spousal support purposes, under the somewhat unusual facts as existed there. Still, it also involved a request to terminate support based upon cohabitation, which was denied.
Pertinent to this discussion, the appellate court in Tong v. Samson ruled "The factors listed in section 4320 apply to permanent support orders.
Of these, the only factors relevant to temporary orders are the supported spouse's needs and the supporting spouse's ability to pay. [Citation omitted]. To the extent the court required Richard to present evidence on factors included in section 4320 but inapplicable to temporary spousal support, it erred. 'Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for... temporary spousal support.... [Citations.]' [emphasis added]."
Hence, 4320 in all its glory does not control how courts arrive at temporary spousal support numbers - which instead, as other Blogs herein descirbe - are generally addressed using the child support guideline formulas and the legal Xpouse or Dissomaster software.
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| February 20, 2012 |
| GAVRON WARNINGS and SPOUSAL Support - What Self-Represented Parties Should Know! |
| Posted By Michael C. Peterson, Esq. |
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The Morrison Rule, Richmond Orders, and Gavron Warnings:
What Self-Represented Parties Ought Know About
Continuing Spousal Support Jurisdiction
Current trends among separating couples and in California family courts towards informal case disposition, especially as a result of the economy, mean that self-represented litigants must make themselves conversant with important legal concepts that can have long-reaching effects for them. One common issue involves a reservation of continuing court jurisdiction over spousal support and alimony orders.
Often people desiring an "amicable" or "cheap" divorce fail to seek out competent legal advice, or rely upon paralegals or non-lawyers to mediate their disputes. While it is true that these cases get processed and concluded, such advisors have a very limited understanding of downstream legal consequences - sometimes with catastrophic or unintended results for either party. A large percentage of couples understandably wish to avoid generating fees by consulting lawyers before they settle their cases, and so risk resolving their matters blindly.
Commonly one side is represented by an attorney and the other is not. The lawyer who represents one party facilitates the settlement dialogue between the two and drafts the agreements and stipulations the parties arrive at, filing them with the court. In many cases this works well, particularly with lawyers with a strong internal desire to be transparent. But keep in mind that lawyer ethics may require an attorney to withhold important information that the non-represented party might find helpful, where for instance that attorney's client so directs. A lawyer's first obligation is always to his or her client. That client may complain if the lawyer whom they hired to be their advocate suddenly spills all the beans by, for instance, offering information that wasn't asked for. If you rely on what your spouse's lawyer tells you (which rarely includes outright false information but might include not disclosing every nuance), you gamble that that lawyer indeed has a strong sense of fair play. At the Law Firm of Thurman Arnold we tell both sides in such situations what we really think. __________________
Where alimony or spousal support is relevant, one issue in settlement discussions that should be addressed is when spousal support jurisdiction terminates, if at all. Obviously it is in the supporting party's interest to minimize their financial exposure for paying spousal support, and termination of spousal support jurisdiction is a powerful tool that favors the supporting party. "Termination of spousal support jurisdiction" refers to situations where the parties agree in writing that at some point in time, or upon the occurrence of some event, the Court loses its power to modify, extend, or issue support orders.
As such, it is important for a divorce litigant, particularly a supported party, to understand how spousal support jurisdiction will affect their case, and to be familiar with the 'legalese' they may encounter when talking to opposing counsel, a judge, or even their own lawyer. I want to introduce you to these themes: spousal support jurisdiction termination, the so-called
'Morrison rule',
'Richmond orders', and the effect of a
'Gavron warning'.
Unlike with child support orders (where the court retains jurisdiction to modify orders throughout a child's minority), courts do not necessarily have the same kind of automatic continuing jurisdiction for reviewing spousal support orders. You can't bargain away your child's right to be supported, or your obligation to support that child (although the parties can usually agree on amounts without court interference), but you can do almost anything lawful that you wish affecting spousal support by mutual agreement. Continuing jurisdiction over spousal support, or when support terminates, often is negotiated by the parties in exchange for some quid pro quo. Therefore, the first major principal to keep in mind for a supported party is that without an express reservation of jurisdiction written into a marital termination agreement, Stipulated Judgment, or otherwise on the record, the court cannot extend or reinstate spousal support.
If you are a supported spouse, the language you may wish to see is something like this: "Husband agrees to pay to Wife the sum of $X dollars per month as and for spousal support, payable one-half on the first and one-half on the fifteenth, until the death of either party, the remarriage of Wife, further written agreement of the parties, or further order of the Court." This is an open ended support provision, and if you are the supported spouse it is probably going to be acceptable to you. If you are the payor, however, you may want something more.
Second, the policy of the law is that the right to receive spousal support does not last forever. The "duration of support [should] be limited so that both parties, where possible, can develop their own lives, free from obligations to each other." Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 663.
Family Code section 4320 is the key California statute governing spousal support. Subsection (l) of 4320 directs trial courts to consider this policy in ordering judgment spousal support in the following terms: "[it is] [t]he goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a 'reasonable period of time' for purposes of this section generally shall be
one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties." [Emphasis added]. This subsection provides the text of what a Gavron Warning consists of. If you have heard that language from a Judge, you've received a Gavron Warning.
By the way, it is arguably only appropriate to give such warnings at the conclusion of the case (whether through settlement or otherwise), and not at the temporary spousal support phase - i.e., not at your first hearing for support. But if you are the payor spouse, you should urge that it be given nonetheless.
California's Family Code establishes a rebuttable presumption that a marriage of 10 years or more, calculated from the date of marriage to the date of separation, is a marriage of "long duration" for purposes of retaining spousal jurisdiction. Fam.C. § 4336(b). Shorter marriages may also be considered 'lengthy' by a court upon competent evidence based upon the parties' circumstances (i.e., 10 years is not a fixed finish line), but they do not have the benefit of the presumption in 4336(b). This might be true where, for instance, the supported spouse is gravely ill, or for other reasons. Pre-marriage cohabitation time with the other party does not count, and separation periods followed by reconciliation generally will not be considered by a court as counting against the 10 year period.
The Morrison Rule
The third major principal to keep in mind is the Morrison rule. In the context of lengthy marriages, a court's failure to expressly reserve jurisdiction to extend future support is an appealable abuse of discretion, unless the record clearly indicates the supported spouse will be able to adequately meet his or her financial needs at the date set for expiration of the order.
Marriage of Morrison
(1978) 20 Cal.3d 437, 453. This rule is now codified in Fam. C. § 4336(a), which provides: "Except upon written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal
gal separation of the parties where the marriage is of long duration." Because of the Morrison rule and the supporting party's financial self-interest, the supporting party will usually push the payee spouse for an agreement, or push the court to make a finding, that spousal support jurisdiction be terminated at some point in time in virtually every divorce case. The supported spouse should try to avoid such agreement or order unless some substantial bargained for benefit justifies contrary action. But because of policy reasons described below, it may nevertheless be impossible for a supported spouse to avoid an order terminating spousal support jurisdiction at some point in the future, particularly with marriages of less than 10 years involving people in the first half of life.
The court's statutory duty under 4336(a) to retain spousal support jurisdiction for "lengthy" marriages does not eliminate the court's discretion to create a date certain for termination of spousal support itself at trial or in a post-judgment OSC on a showing of changed and now present circumstances of either of the parties (e.g. the supported spouse is now fully self-supporting), subject to Fam. C. § 4320 spousal support amount determination factors. A supporting party will virtually always want a date certain to terminate a spousal support obligation itself without necessarily terminating the court's jurisdiction over the issue.
Richmond Orders (Contingent Events and Step-Downs)
In litigation involving lengthy marriages in excess of 10 years, one tactic a supporting spouse may present is for an order is to have a contingent spousal support jurisdiction termination date, also known as a Richmond order. In essence, an
Richmond order is
an order terminating spousal support jurisdiction on a specified date unless, before the specified date, the supported spouse shows the court good cause to modify the amount and/or duration. These sorts of orders are more common where a payee spouse is receiving education, or is being trained for a career.
When a judge can determine from the evidence that the supported spouse is capable of being self-supporting (e.g. because the supported spouse is still of suitable employment and/or training age, has an education or the opportunity to obtain one, is healthy, etc.) such an order is justifiable in that, unlike an open-ended order on spousal support jurisdiction, a Richmond order does not encourage delay in seeking suitable education, training, and employment. As such a
Richmond order accommodates the policy goal of self-support, and that both spouses be able to get on with their lives, free from obligations to each other.
Marriage of Richmond
(1980) 105 Cal.App.3d 352, 356. Because of this practical policy argument, courts may consider and grant
Richmond order (i.e. a contingent future spousal support jurisdiction termination order).
The effect of a Richmond order is: 1) to put each spouse on notice that the supported spouse has a specified period of time reasonably based on the circumstances to become self-supporting (or show the court good reason(s) why s/he is not self-supporting) after which the supporting spousal support itself, as well as jurisdiction to modify or reinstate spousal support, will cease, and 2) to shift the burden of production of evidence from the supporting spouse to the supported spouse to show why spousal support should continue.
If actions or events contemplated by the parties and/or court in a Richmond situation do not occur (i.e., for good reason the supported spouse fails to complete anticipated education or training, or is unable to find adequate employment, through no fault on their part), the supported spouse may, prior to the termination date file a motion to modify the original order as to amount and/or duration. Richmond orders effectively place the burden of extending support on the supported spouse instead of the supporting spouse - who is presumably the one "who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order."Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 666.
Under certain facts there may exist a strong judicial preference for a Richmond order. Courts consider Richmond orders "most appropriate" for most divorces, and will generally grant them unless the circumstances are such that: 1) no spousal support is awarded at all because of the relative wealth and/or income of the parties, 2) spousal support is for a fixed short period following a short marriage, 3) the supported spouse is truly incapable of becoming self-supporting (i.e. health or age issues prevent working and education), or 4) the marriage is of the most lengthy of marriages. Marriage of Stallworth (1987) 192 CA3d 742, 755. However, having said that they are fairly rare in practice.
Gavron Warnings
If the intent of the parties (by agreement) or the judge (by order) is to expect the supported spouse to become self-sufficient (and therefore step-down or terminate spousal support) on a date certain (and thereby shift the burden to the supported spouse to give a judge good reason for a support extension) the supported spouse must have been put on notice of that expectation under the Richmond order.
Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712.
An express or formal warning out of a judge's mouth to the supported spouse concerning the consequences of a
Richmond order is not necessarily required, but is always the best practice to request. The prerequisite awareness described in
Gavron of the court's expectation of the supported spouse's future self-sufficiency may come from, for example, an explicit statement in the support order, a motion and ensuing order that the supported party submit to a vocational training examination, a stipulation addressing the spouse's ability to obtain future employment, or even a justified assumption of continued future employment based on the spouse's employment at the time the order setting a reasonable termination date was made.
It is generally our opinion that the bottom line for most supported spouses is that they should, upon receiving spousal support and in the absence of extraordinary circumstances, find some employment that he/she likes and that maximizes their income earning potential. If that income is for minimum wage only, it is better that the supported spouse takes the employment and works as much as possible as opposed to not taking any employment at all. If a supported party needs further economic aid, when they come to court able to demonstrate his or her good faith and best efforts to be self-supporting, he/she will have a much better chance of success in extending support that otherwise might terminate.
Alternatively, if they don't, the payor may find that the obligation ends....
Michael C. Peterson, Esq.
Law Firm of Thurman W. Arnold
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| November 13, 2011 |
| Wife Bears Own ATTORNEY FEES In Failed SET ASIDE MOTION Involving MSA |
| Posted By Thurman Arnold, CFLS |
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Marriage of Guilardi (11/7/11) 200 Cal.App.4th 770
The Sixth District Appellate Court (including Santa Clara County) has upheld a trial court denial of recovery for the attorney fees incurred by and during a former wife's unsuccessful bid to set aside a Marital Settlement Agreement (MSA), based upon express language and implied waivers contained in that agreement (which became incorporated into the Judgment once it was approved by the court), and some misconduct on Wife's part.
Wife sought an award of $157,650 which she had paid (or that possibly remained unpaid) to her attorney, under the "needs" based provisions of Family Code section 2030, even though she incurred them on an underlying motion to set aside the MSA and Judgment that had been determined adversely to her. Her application was made on the basis of fraud, mistake, perjury and noncompliance with the Family Code disclosure requirements - which are standard grounds that
Family Code section 2122 enumerates for setting aside family law judgments. It appears from this decision, which is obtusely written at times, that Wife had waived spousal support in that agreement.
Her motion was filed one day before the one-year statute of limitations expired as to some of those grounds (i.e., mistake). When Wife signed the MSA she was not represented by counsel, and for "reasons known only to her" declined to consult with anyone despite being warned by language in the MSA that she might wish to do so and would be bound by it in any event. The MSA contained two standard provisions that the trial court seized upon in denying Wife recovery of any fees: a) a waiver of all claims under Evidence Code section 1542 and b) a clause that stated that in the event of further litigation arising from the agreement, the prevailing party would be entitled to recover their attorney fees and costs. It did not contain any express waivers of need based or other attorney fee claims, but the trial court implied this waiver from the language and intent of the document.
Unfortunately for Wife, also, the trial court found that she had intentionally destroyed a premarital agreement - although the decision is vague about how the prenup related to the MSA (apparently it too waived spousal support, but the trial court refused to uphold that waiver to the extent it arose in the premarital agreement) - and this fact may be useful to distinguish this decision from other cases, and their lines of reasoning that suggest some courts might reach a different result. (The decision recognizes this split of authority and briefly discusses these other cases). Reference to Wife's destruction of the prenup is also confusing because it was apparently nonetheless litigated so someone must have retained a copy.
So began three years of litigation, and ended after two more years of appellate processes. And lots of attorney fees for both sides.
I have mixed feelings about this decision. Sometimes bad facts make bad law. The decision doesn't tell us what burden of proof the trial court applied in finding a "waiver" of rights - whether by a preponderance of the evidence or by clear and convincing proof - and the additional fact of wife's destroying the Prenup, which the appellate decision repeatedly points out, makes this case muddy in terms of its potential application. I suspect that trial judges who wish to apply this case to fact patterns they see in their courtrooms may apply this holding without regard for similar bad acts in their own cases; in this sense, if indeed wife's destruction of the prenup sealed her fate, as the decision seems to imply, other people's fates may be similarly sealed in the future even in the absence of bad faith. And, is it good public policy to declare that a party who, in good faith, prosecutes a set aside motion should not recover fees if they ultimately lose? The two provisions in this MSA that the trial court relied are pretty much universal in MSA's and Stipulated Judgments for Dissolution and related marital or domestic partnership proceedings. Provisions that might be enforceable in most business or nonmarital contracts, particularly as they relate to power imbalances over the control of property or income that may be controlled by an "in-spouse", arguably should not apply within the family law context.
On the other hand, the fiduciary relationship arising under the fact of the marriage ("de facto" fiduciary relationship) ended when the parties separated and began their divorce battle. This is to be contrasted with the continuing legal obligations ("de jure" fiduciary duties) between the parties that don't end until the community property has been distributed. Additionally, there is a strong public policy interest in the finality of judgments - and this case, extending over 3 years at the trial court level, must have been expensive for the Husband. To have prevailed but still to have been required to pay $156,000 (or some other substantial amount) to Wife for her failed attack seems inherently unfair. This is especially so to the extent that she was destroying documents or otherwise defrauding him or the court. Moreover, Wife did sign the MSA and never apparently satisfactorily explained how this was not her own fault. While she was unrepresented at that time, she made that choice willingly.
Another unanswered question in the reported decision is whether Husband himself sought attorney fees against the Wife as the prevailing party; it seems not. Presumably this is because Wife signed away substantial rights to property and support when she executed the MSA, and so had little to give towards his attorney fees. Notably this was a lengthy 16 year marriage, and it produced a 10 year old daughter. We know nothing about Wife's education, background, or the parties' assets and income.
Incidentally, Wife complained for the first on appeal that the denying her a need's based attorney fee award per Family Code section 2030 was inappropriate given that issues of child custody and support were also determined in the MSA; she did not urge this point in the lower court. The appellate decision implies that such an argument, if properly made, could have caused a different result even if Mom still had lost the set aside application.
This is an important case for protecting the interests of parties once settlement agreements are executed and approved by family court judges. It is also one of those cases that parties who are resisting set aside motions will use to intimidate the other side. It is not at all clear from the decision what would happen where a party files a fee application to underwrite their set aside motion and sets it to be heard before the final determination, i.e., before the other side is determined to have "prevailed." But the implications seem clear. This case should not be considered the final word on the subject. |
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(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.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| November 11, 2010 |
| Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us? |
| Posted By Thurman Arnold |
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Q. We were divorced three years ago and I haven't taken my ex-husband back to Court. I think he is earning a lot more now. Is there anything I can do to find out what his situation is short of actually filing a modification motion?
A. Absolutely. There is a little known trick for obtaining useful information, possibly with a minimum of trouble, once each year. This is the Request for a completed Income and Expense Declaration (Form FL-150) pursuant to
Family Code section 3664.
When there is no motion or OSC pending for a modification, termination, or set aside of earlier support orders you are limited in terms of your discovery rights in California - assuming the proceedings were completed in the sense that nothing is pending or presently calendared (if there is no final judgment in a divorce, partnership dissolution, or paternity action then you are entitled to continue to utilize discovery and what I say here doesn't apply). You cannot, for instance, schedule a deposition or send out interrogatories or even subpoena records, at least not properly. I have seen lawyers send subpoenas when nothing was pending and if I had done nothing they probably would have gotten the information requested since the receiving party doesn't know the status of the case, but when I objected they backed off and canceled the subpoenas at once because it was abuse of process to do what they were attempting.
But in your case you only have the option provided for by FC section 3664. This entitles you to send out on an approved
FL-396 Request for Production of An Income and Expense Declaration After Judgment a request no more than once each year
(Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.
Importantly, the responding party is required to attach to it their last year's federal and state personal income tax returns. (Family Code section 3665).
If they do not respond to you within 35 days, or if there information is incomplete as to wages, you may serve Judicial Council Form Request FL-397 upon their employer per
Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision lacks teeth. Yet if you later do file a motion and can show a history of noncompliance by the employer and/or the other party you are more likely to recover attorney fees or sanctions as well as prove that the other party is being evasive or possibly dishonest and this may help you not only to carry your burden of proof and obtain a modification but it may impact how strongly the court acts towards your ex. In the case of family businesses where there is a lack of cooperation it helps the Court to see that you are being stymied.
Section 3664 is also a very useful tool for parties who are trying to modify or terminate support payments that they have been ordered to make. If you are a payor former spouse or domestic partner and want to terminate the other party's support rights, you would begin by sending them the Request. Again, if they fail to cooperate and comply it makes them look like they are hiding something.
Finally, Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense declaration wasn't provided you, was incomplete, or lacked the required tax return attachments. While you cannot recover attorney fees if you don't actually have an attorney (and this section doesn't provide for them anyway), you can recover deposition and related costs, like for subpoenaed records (which can be significant charges), even where you are a self-represented party.
Good luck!
Thurman W. Arnold III,
Certified Family Law Specialist
Board of Specialization, State Bar of California
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| October 02, 2010 |
| TIPS on How to CONTINUE a SUPPORT HEARING and Buy Time |
| Posted By Thurman Arnold |
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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!
Thurman Arnold
http://www.DesertFamilyMediationServices.com
10/2/10
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| September 21, 2010 |
| How Does DOMESTIC VIOLENCE Affect My SPOUSAL SUPPORT OBLIGATIONS? |
| Posted By Thurman Arnold |
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Q. I obtained Domestic Violence retraining orders against my ex, but I earn more money than she does. Can I use those orders as a defense against her request for temporary spousal support from me?
A. Yes, you can - perhaps quite effectively.
It is evident that California Judges and Family Court Commissioners are being trained at judicial college to take seriously the language of Family Code section 4320(i), which is one of the factors that the legislature has declared trial courts must evaluate in entering post-judgment or "permanent" alimony orders. That subsection reads that courts must consider:
"i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party."
Documented evidence includes at a minimum an Order After Hearing issued against a person upon a DV application for conduct described in Section 6211. Obviously it includes criminal arrests and convictions.
The definitions of what constitutes domestic violence in California are set forth in Family Code section 6320. These are interpreted broadly. One of those definitions includes reference to "disturbing the peace of the other party." That definition can include all kinds of objectionable behavior, and really means that if the Judge is offended by the conduct, it is a form of domestic violence. The recent case of IRMO Nadkarni (2009) 173 Cal.App.4th 1483 extended DV protections to breaking into the Wife's email account and then disseminating what the Husband had obtained there. It is also included allegations of physical threats. The trial judge was reversed in his belief that this was not sufficient misconduct. Clearly the legislature and the appellate courts want to send a message that DV must stop - which is a very good thing.
However, I am aware of a case where a husband was living in a casita attached to the family residence, after he moved out of the main house to avoid his wife - who was constantly verbally harassing him. She then changed the locks. He decided to move to a different address entirely, but after he got back into the house (which was community property) without breaking in, he allegedly removed some his belongings and took some items that belonged to both of them, and also reportedly messed up her personal effects. She sought and obtained domestic violence restraining orders, claiming that he had violated her rights by entering what was a jointly owned property, and that this caused her fear. It is possible that she seized upon his entry as a tool to avoid paying him spousal support.
After the judge entered her restraining orders, the husband's motion for spousal support was heard. The trial court refused to award him any support, despite his earning $2,000 and her earning $14,000, based upon the DV order and the emotional distress she had supposedly suffered when he removed his belongings.
This can be viewed as an invitation to spouses to abuse their domestic violence protections regardless of gender. Yet, domestic violence is a terrible epidemic that affects women and children most often, and it must be treated with the utmost seriousness. Often men are the instigators, but not always. I don't care whether the perpetrator is a man or a woman - the same rules should apply to both sexes.
Family Code section 4320 is used for long term spousal support awards, but courts are applying 4320(i) even at the temporary support stage to augment or deny spousal support claims. There is some appellate support for that view.
So, you may have a very good defense to paying your ex any spousal support because of the domestic violence orders that you obtained and you should assert it. I hope the courts will be gender blind in enforcing these orders - meaning, I believe it is very important that we apply the same rules to all people, period.
Thurman W. Arnold III
http://www.DesertDivorceandFamilyLawyer.com
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| June 11, 2010 |
| What should I know if I want to LIMIT or TERMINATE SPOUSAL SUPPORT in the future? |
| Posted By Thurman Arnold |
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Q. My wife and I were married for 14 years. We have two children, aged 11 and 13. We are both in our early 40's. My wife has a college degree, but quit working shortly before our first child was born. I am a doctor, and she was a nurse at the local hospital before she quit. Our divorce is not final. I think she should be able to support herself once she gets some updated training, although I don't object to supporting our children. She says she won't work until until our youngest child finishes high school. What should I ask the judge to do and what should I expect to limit my spousal support exposure?
A. There are a number of things you need to know.
First, you have a long term marriage within the meaning of Family Code section 4336. Start with the expectation that you will be paying alimony for at least half the length of the marriage, assuming your relative income circumstances do not change.
Second, Family Code section 4320 sets forth the most important factors that a court is required to consider in issuing a spousal support award; it is also the decisive section for determining whether spousal support should be modified, reduced, or terminated in the future. As to later modifications, this means that whatever the court decides as to the 4320 factors (or depending upon what facts are recited in your Marital Termination Agreement) may have a huge impact on how much you pay and for how long. The 4320 factors only come into play when a final judgment enters: Although courts are supposed to consider them in dealing with temporary spousal support issues, they typically do not.
Third, it is essential that you convince the Court to give your former spouse a Gavron warning.
I have separately blogged this concept. In essence its effect is to give a supported spouse something of a free pass to rehabilitate themselves and enter the work force until and unless they've been given advance notice of that expectation. If you settle your case without going to trial, as I sincerely hope you do, make sure that a Gavron Admonition is included in your settlement agreement. It starts the clock ticking on your former wife's obligation to become self-sufficient. However, you need to realize that her ability to do so will be impacted by her child rearing responsibilities to whatever extent they exist, and most courts will consider this. It becomes less relevant with older children. Given the length of your marriage (14 years) your youngest child will be finishing high school right about the time that you reach half the length of the marriage.
Fourth, consider trying to get what is called a Richmond Order. Essentially this is an order or an agreement to
terminate spousal support jurisdiction on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount of support or its duration. Unlike most orders which are open-ended, a Richmond Order discourages delay and supports the goal of California that an ex-spouse receive support only so long as is reasonably necessary to get back on their own two feet. They are generally not appropriate in extremely lengthy marriages, or in situations where health or age makes it unreasonable to believe the other party can become self-supporting.
Age is a factor in your case because there is still time for your Wife to develop financial independence.
The effect of the Richmond Order is to place the burden upon the supported spouse to justify continuing support because of unforseen future events. Most judges prefer Richmond orders, but you won't get it unless you request it. Attorneys representing supported spouses are less likely to agree to them in Marital Settlement Agreements at first blush. There may be good reasons, however, that be persuasive if you persevere.
Fifth, consider a request for step down spousal support orders where support is reduced in increments into the future; this may make perfect sense depending upon the length of marriage, whether there are children, and the supported spouse's age.
Sixth, consider a Family Code section 4331
Vocational Training Examination. Even if the Court concludes that it is not reasonable for your wife to work now, this may create an important benchmark which will be useful to you in the future. Downstream if she does not obtain employment she arguably might have, the Court may be convinced it should impute income to her that might have otherwise earned.
At this stage of the proceedings you are setting the stage for a future reduction. That requires smart advance preparation. Find a competent spousal support attorney in your area!
By the way, this is exactly why you should want mediation rather than a court judgment. IMHO. Mediation takes the future into consideration, and creates a safe container for the parties to talk about it!
Thurman Arnold III
http://www.DesertDivorceandFamilyLawyer.com
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| June 11, 2010 |
| What is a GAVRON WARNING and how does it affect my right to SPOUSAL SUPPORT? |
| Posted By Thurman Arnold |
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Q. I was at our first court hearing last week requesting child and spousal support, and my husband's attorney asked the judge to give me a "Gavron Warning". The judge said he would consider giving it to me at a future hearing and didn't go along with the lawyer, but I don't understand what this meant. The judge did order my husband to pay child and spousal support. What do I do if this comes up again?
A.
Gavron warnings deal with the question of when a supported spouse may be expected to become partially or totally self-sufficient, so that they can no longer be expected to rely on a former spouse for economic support. At some point the entitlement to be supported usually ends.
Where the court intends that party to become self-supporting by a given date, it generally must first give that person advance warning. Marriage of Gavron (1988) 203 Cal.App.3d 705 is the case which first articulated this policy. This advance notice is now called the Gavron Warning. It does not impact child support.
This represents a trend in the law away from a rule which once entitled a spouse (typically women) to lifelong alimony to a right to receive spousal support for only so long as necessary to become self-supporting. It applies equally to men and women, and to domestic partners. There is no question that this trend has gained legislative acceptance, and in 2000
Family Code section 4330 was enacted. It provides in part:
"(b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in
Section 4336, the court decides this warning is inadvisable."
Note that this statute states the court "may advise" the support recipient to make reasonable efforts to assist in supporting themselves. This means it is up to a judge to decide at any given stage oin any given case when and whether or not to give the warning. One of the factors that the court must consider is the length of the marriage.
Family Code section 4336 defines a marriage of long duration as 10 years or more. There are cases that have decided that this 10 year rule is not inflexible, and that marriages of less than ten years may qualify for this protection where the facts warrant it (i.e., disability, domestic violence, the parties' respective ages).
The effect of the Gavron decision is to require that fair advance notice in fact be given before a court can properly terminate or reduce spousal support as of a specified future date. The idea is that a supported spouse should not be punished for failing to meet the court's unrevealed expectation that they would become self-sufficient - absent this required advance notice it is judicial error to abruptly terminate an alimony order because of a failure to make good faith efforts to become self-supporting.
However, that notice need not be express - although it usually is. For instance, your husband's attorney was competently (but aggressively) representing your husband by asking the court early on to give you an express warning. He or she will probably ask again at every future hearing until the judge finally does give you the Gavron admonition. That warning need not be in any magic formula: It merely needs to clearly tell the supported spouse that they are expected to become self-supporting. The classic language is contained in the FL-180 Judgment of Annulment, Legal Separation or Dissolution form and reads: "It is the goal of this state that each party will make reasonable good faith efforts to become selfsupporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts maybe one of the factors considered by the court as a basis for modifying or terminating spousal or partner support."
Except in short marriages of less than 10 years, most judges will not issue Gavron warnings early on because during the early divorce process it is not reasonable that suddenly a homemaker should become self-supporting. At the time a Judgment of Dissolution or Legal Separation is entered, however, and possibly except in cases of very lengthy marriages lasting 20 years or more (or where the parties are too old to be expected to retrain), most judges will give the Gavron Warning.
Additionally, Gavron language is often found in Marital Termination Agreements (also known as MSA's for 'marital settlement agreements'). Whether the language is included in the settlement agreements is a matter of negotiation between the parties. As a recipient you want to resist it. As a payor spouse, you want to insist upon it. The longer the marriage, the less reasonable it is to include such language. For instance, when I represent women over the age of 50 with marriages in excess of 10-15 years, I counsel my client not to permit it - however, the reality is that by the end of a case, except perhaps in very long marriages, judges are going to give the admonition. On the other hand, if I am representing the high earner spouse, I always argue for its inclusion. This is one of those subtle areas where having the right attorney for you can make a huge difference in your future security. However, as you may have noted above the language has become so standard now that it is included in the FL-180 Judgment form and be used for or against you even if you never read that piece of paper (one you don't sign).
In answer to your question what to do when this comes up again, urge the court that this is too soon and too early, and not reasonable given that you have devoted your married life to child-rearing and to helping your client develop the career that you both once believed would support the family until retirement and ultimately death.
This is just an overview of the Gavron effect. I will give more education on the topic in future blogs.
T.W. Arnold III |
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| May 14, 2010 |
| What do I do about SPOUSAL SUPPORT if my ex-spouse is COHABITING with another man? |
| Posted By Thurman Arnold |
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Q. My ex-wife is living with another guy. I am paying her spousal support per our settlement agreement. I have remarried, and this really upsets my present wife. Besides, I don't think it is fair. What can I do?
A. Lawyers who represent "payor" spouses often attempt to include a provision in the parties' Marital Settlement Settlement Agreement or divorce judgment that says future cohabitation between the support recipient and another person will terminate spousal support. If your agreement so provides, you may have leverage to modify or terminate spousal support.
But even if your agreement or the Judgment is silent about cohabitation, Family Code section 4323 creates a rebuttable presumption the she has a
decreased need for alimony once you convince the Court that your ex-wife is living with a person of the opposite sex, who is sharing income or contributing to her expenses. That section tracks the public policy of this state that you should not be underwriting your ex-wife's new household where her expenses are being covered by a romantic partner.
The § 4323 presumption isn't triggered solely because a man is living in your ex-wifes home. It does not cover persons who are simply opposite sex roommates, which as you would expect is the common explanation or story. An ex partner may take on a roommate for purely financial reasons - that is not by itself cohabitation. If you believe there is more to the relationship, look to establishing the length of their joint living circumstances, and utilize discovery to try establish whether they have joint credit cards or household accounts. If this is a new situation that you've just learned about, consider being patient and don't file for relief too early; let your ex's situation mature. If she is indeed in a romantic relationship, it will be increasingly unlikely that she will move him out in response to your motion.
Don't expect to learn what that person earns. California law is pretty clear that you won't ever get that information. Look instead to what that person contributes to joint expenses, or to your ex-wife's expenses.
I do not recommend that you hire a private investigator to peek into their bedroom to establish that they have an intimate relationship. But what course you take may depend upon how she characterizes the relationship. For instance, if she claims there is not an intimate relation, then proving there is may be useful to you.
Understand that even if your ex spouse is receiving financial benefits from her live-in, that does not gurantee that the Court will terminate as opposed to reduce her support - the statutory presumption is for a reduced need. If the marital standard of living that the two of you enjoyed was high, and she is shacking up with a tennis coach, the Court might choose to reduce her support rather than cutting her off entirely because his contributions may be limited in light of the marital standard. Don't think that just because you feel violated that the Court will view it in the same way, although it might.
Section 4323 only speaks in terms of living with a person of the opposite sex. However, if your ex-spouse is living in a romantic relationship with a same sex partner, it is hard to imagine that a judge will not act to reduce your alimony obligation. We have no appellate decisions on this question yet.
File a motion to terminate the support, but ask in the alternative that it be reduced. Even if you are not successful terminating support the first time, if they continue to live together you will have an improved chance on your next application.
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| April 13, 2010 |
| How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders? |
| Posted By Thurman Arnold |
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Q. My former spouse claims that I lied on my Income and Expense Declaration and filed a motion to set aside that order, and is now seeking more money. What are my rights?
A. This type of support modification can occur in two situations: Where it is alleged that you aren't paying enough because you committed some fraud or where you alleged you are paying too much because the other party committed some fraud in connection with an Income and Expense Declaration [FL-150] or some other sworn pleading filed with the Court.
If you are defending a support set aside motion, there are three bits of law you need to know.
First, there are important time limitations on when a motion must be filed before a Court will set aside a prior support order. As action based upon fraud or perjury must be brought within six months after the date on which the complaining party discovered or should reasonably have discovered the fraud or perjury. Family Code section 3691.
Second, the moving party must convince the trial court that all the other party has established is that it was a) inequitable when made or b) subsequent circumstances caused the the supported ordered to be inadequate or excessive, but that nothing more has been proved that that those grounds are insufficient by themselves. Family Code section 3692.
Third, on April 8, 2010, the case of In re Marriage of Zimmerman was decided and certified for publication and it is the first reported California appellate decision to squarely address these family code provisions. You will want to cite this case to the judge.
In Zimmerman a mother and former wife filed a motion to have all child support recalculated going back some five years, on the ground that the father had committed fraud and perjury with respect to prior order by concealing income in his earlier FL-150's. However, because of facts alleged in earlier pleadings she had filed with the Court a declaration making reference to these very same claims, the trial court was affirmed when it found that more than six months before she filed the Motion she had discovered or reasonably should have discovered the alleged fraud and perjury.
This is a very important case in this area because family law litigants are frequently claiming in their papers that the other side is lying or concealing information. This case stands for the proposition that it is unwise practice to even mention these claims prematurely, because if one does then the defending party will point to those statements - 'you see, she knew she had this claim two years ago.' It is always unwise to make statements to the Court about dishonest conduct on the part of the other side where there is no solid proof, yet, in any event.
Thurman W. Arnold III
http://www.ThurmanArnold.com
4/13/10
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| April 13, 2010 |
| What Are My Rights When I Believe My Spouse Committed Fraud in Their Income & Expense Statement? |
| Posted By Thurman Arnold |
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Q. What remedies do you have if you believe your spouse concealed income or lied about assets in their Income and Expense Declaration [Form FL-150]?
A. The FL-150 Income and Expense Declaration must be filed by each party in every California family law case involving requests for money (whether support or attorney fees), and it must accompany the FL-142 Schedule of Assets and Debts that is part of the Preliminary Declaration of Disclosure that must be exchanged in all action for dissolution of marriage or domestic partnership, legal separation, and annulment. In addition, Rule of Court 5.128 requires these Income and Expense Declarations to be current, which means they need to be updated so that they are, generally speaking, not more than 90 days stale.
Family Code section 3691 sets for the grounds and time limits for filing a Motion or OSC to set aside and correct an order for child support or spousal support which was obtained by your present or former spouse, or the other parent. You need to be very careful with these time limits, because they are shorter than other set aside remedies contained in the Family Code (for instance, Family Code section 2122 dealing with property settlements and judgments). It is important get the applicable code sections right, because different time limits apply for seeking relief from the Court.
Family Code lists the grounds for a support set aside as a) actual fraud; b) perjury; and c) lack of notice.
a) Fraud - this occurs when 1) the defrauded party is kept in ignorance or 2) in some manner other than their own lack of care or attention was fraudulently prevented from fully participating in the proceeding. This set aside ground is different from perjury. It applies to a situation, for instance, where you were told that your spouse was not seeking certain orders and so you failed to attend to the hearing only to learn later that in your absence much broader relief was requested than represented. It also applies any time information is provided by the other side that was materially false and when you relied on that false information not knowing that it was false (for instance, a party fails to disclose another job, much higher earnings, or property).
b) Perjury - where the other side has simply lied outright under oath in their Income and Expense Declaration or in the supporting verified application. Be sure to allege fraud as well since a perjurious statement is often a fraud.
c) Lack of Notice - this generally applies to situations where the other side claims you received notice of the proceedings but in fact you were not served. This can be difficult to prove where a proof of service was filed with the Court which itself is perjurious (i.e., your husband's best friend he claims he hand delivered to the documents to you on a day you were in New York).
This section applies equally to orders which were way too high based upon any of the above grounds as those that were way too low.
Family Code section 3691 will not help you in situations addressed in Family Code section 3692, where your support order was merely unfair or subsequent circumstances caused the order to be excessive or inadequate. Section 3692 is your first argument in defending a support order set aside motion.
In any of the above cases, you must file your motion within six months of the time you discovered or reasonably should have discovered the fraud, perjury, or reasonably adequate notice of the order.
Thurman W. Arnold, III
California Family Law Attorney
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| March 25, 2010 |
| What is GUIDELINE SUPPORT in California? |
| Posted By Thurman Arnold |
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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 to 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 only 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. Fortunately these calculations are done for us through computer programs. The most common are the Dissomaster and Xspouse. The Riverside County family court 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).
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' s income, 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.
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| January 17, 2010 |
| Why is the date of PHYSICAL SEPARATION legally important? |
| Posted By Thurman Arnold |
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Q. Why is the idea of 'physical separation' important in California?
A. The idea of "physical separation" is one of the most important concepts to California law. If you think that the presumption that all property acquired during marriage is significant, the notion of physical separation is every bit if not more important. This appears to be one of the best kept secrets of California family law.
Physical separation is the date that the marriage ends, for most practical purposes. The date of physical separation is the date that community property ceases to accumulate. Family Code section 771 states "The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse."
Once spouses separate, all their earnings and everything that is acquired with those earnings are separate property of each spouse, respectively.
Similarly, upon separation each spouse is no longer liable for the debts of the other spouse. The community estate is liable for a debt incurred by either spouse "during marriage". During marriage "does not include the period during which the spouses are living separate and apart before a judgment of dissolution ... or legal separation...." FC section 910. An exception exists as to "necessaries" except to the extent that the parties are living separate by agreement and whether or not support is stipulated by that agreement.
FC section 4302.
Separation is of critical importance to the expanding interpretation and growing field of the law of fiduciary duties. The duty of confidentiality that arises because of the marital relationship by legislative fiat (Family Code section 721) and which gives rise to major exposure for the conduct of spouses with regard to property and money, ceases at separation - meaning spouses no longer have the expectation and right of relying upon one another as trusted partners. Fiduciary duties continue pursuant to
FC sections 1100 et seq. and
sections 2100 et seq. as to assets that already exist, or can be considered marital opportunities arising after separation, until the time each asset in question is divided by agreement or court adjudication. Fiduciary duties are land mines. A good example of the consequences for breach of fiduciary duty is the Rossi case, where a wife who won the lottery and then filed for divorce the next day claiming she and her husband had already separated. She fails to list the lottery winnings in her paperwork, and refused to disclose it to the husband later claiming, among other things, that she had been a victim of domestic violence. Because the husband had no idea about the lottery winnings, he did not dispute the divorce or wife's asserted date of separation until much later when one day he received a letter intended for the wife by a company offering to buy out the winnings. He called the State Lottery Board, and then filed a motion to set aside the divorce degree and for damages for wife's fraud and breach of fiduciary duty. The court ordered the wife to disgorge all her winnings (100%) and pay them over to the husband.
The separation date is crucial to understanding reimbursement claims relating to payment on joint and separate debts, or in fixing rights to real property. For instance, California law provides that the community has an interest in the appreciation of a residence which is owned, meaning title is held, in one spouse's name alone where principal on a mortgage is being paid down. This is called the Moore-Marsden approach to equitable reimbursement. If the house appreciates after separation, the titled spouse may want to argue that all that appreciation belongs to them. Date of separation becomes important to the date of valuing the real estate and determining the relative principal loan amounts.
It is crucial where businesses are involved, regardless whether they are corporations, mom and pop shops, or sole proprietorships. For instance, what happens when a spouse who controls or who is the business, which was established before or during the marriage, continues to derive income from it after the parties separate? Maybe the business goes up in value. Perhaps it goes down in value through market factors, or maybe even the spouse intentionally drives it into the ground in order to reduce the amount that will be ordered to buy out the other spouse's interest. In all these situations a date of separation determination is crucial.
Another common area where it comes up in with regard to pensions, whether they be defined benefit plans or contributive benefit plans. Whatever accrues to the spouse who holds the pension by way of his post-separation contributions belongs to them.
Date of separation is also critical to determining the length of the marriage for purposes of spousal support or alimony rights. It is a snapshot in time with huge ramifications, including how long a spousal support obligation may continue and when it might be terminated.
It is critical that you hire an attorney who understands how to litigate and present the facts of physical separation.
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| December 28, 2009 |
| What is permanent SPOUSAL SUPPORT in California? |
| Posted By Thurman Arnold |
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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 where the respective financial circumstances of the parties justify it. 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 may need an experienced support attorney - even if the support numbers are presently a matter of agreement between you and your (former) spouse.
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 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 downstream 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 (Richmond Orders), and ultimately a termination date.
Second, Family Code section 4320 is the critical California spousal support statute. 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 parties.
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!
Thurman Arnold, Attorney at Law |
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