California Family Law Attorney
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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

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?

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,

Continue reading "Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us?" »

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October 18, 2010
  How Do I Get An Order for ATTORNEY FEES in a COMPLEX CASE?
Posted By Thurman Arnold

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?

[Please note - this Blog is updated with a recent Blog Article detailing the 2011 Revisions to the California Family Code affecting attorney fee awards 12/9/10].

A. I frequently hear from people whose cases are "stalled" because they have no money to pay their attorney, and no money to hire forensic experts. It is a problem I face in my practice with certain clients. It takes money to develop your case, and if there is really none available it is difficult to get anyone to pay attention. Often there are assets that only one spouse controls. That spouse or RDP (registered domestic partner) usually claims those assets to be their "separate property" even when the claim is ridiculous (for instance, closely held stock issued as "their sole and separate property" when the vesting of title in their name alone during marriage was just their manipulation and you didn't agree to it).

When there are assets that exist there is much that you can do. These assets, whether they be allegedly separate or community, are available to be borrowed against, or sold, to raise money so you can pay your attorney and hire experts to do the work that must be done.

However, your attorney needs to understand how to accomplish this or find one who does. Specifically one method that works well is to have a referee appointed under Code of Civil Procedure section 639 to oversee a "case management plan" under the circumstances described in Family Code section 2032(d).

Specifically, have your attorney ask the Court in a motion to make a finding that your case involves "complex or substantial issues of fact or law." These can be related to property rights, custody, visitation, and support and may include bifurcations of issues. If you don't have an attorney, this would still be a start to obtaining findings that will generate money to hire one.

Once the Court so designates your case, it will itself begin to implement a plan or assign someone else - like an outside lawyer whom the court recognizes as an expert, to make recommendations as a referee. While the Court is not obligated to follow the recommendations of these referees, they usually do. And if they don't the court may find itself overturned on appeal as happened 10/1/10 in In Re Marriage of Tharp, a case I will be writing about in detail as time permits.

This is a major step in not only getting someone to look more closely at the attorney fees you need (judges, after all, have really limited time) but also a good way to jump start a stalled dissolution or other family law case.

BTW, under the new statutes that take effect in 2011 as a result of the Elkins Task Force recommendations, case management may become the norm in California in family law proceedings.

TW Arnold

Continue reading "How Do I Get An Order for ATTORNEY FEES in a COMPLEX CASE?" »

September 14, 2010
Posted By Thurman Arnold

Q. How is a family law real property lien used to enforce a support judgment?

A. An effective method for enforcing child and spousal support orders, and collecting what is owed you (plus legal interest at 10% sometimes going back years), is a real property lien. People often find themselves at the last moment surprised by the discovery that a former wife or husband, or other creditor, has liened a home, commerical property, or vacant investment lots. This is extremely unpleasant, particularly when a lender or buyer rightfully announces they cannot close the transaction unless and until a release from that creditor is obtained. This provides effective leverage for the people owed money.

Without some form of a property lien there generally exists few ways to ensure that third parties dealing with the debtor will ensure that unsecured debts owing you are paid. Support payments that are due, whether or not they are then in arrears, are simply nonsecured without more; businesses and individuals dealing with a debtor have no way of knowing they owe such money, and no legal duty to ensure the obligor pays it even if they did.

Property liens are like an insurance policy - even if the person who owes doesn't pay it off now, the lien will haunt the payor, with accruing interest, until she/he satisfies their legal duty to pay. Sometimes this happens years downstream - where, for instance, a person doesn't now own property in their name but one day wants to, does, or inherits. As between families, for instance, people don't do title searches but may gift title to a child, sibling, or parent. Once title goes into the obligor's name, who ever later receives title will end up owing the money if it is not paid. Much like a game of musical chairs.

There is a different remedy for those creditors that believe or find that their former spouse is hiding their interest in real property by titling it in someone else's name.

Abstracts of Judgment Are Effective For Enforcing Judgments

Real property liens are created by recording, with the county recorder's office for the county in which the other party lives or where you know, believe, or anticipate the other property may take title, certain legal documents: an Abstract of Judgment, a Notice of Support Judgment, a certified copy of the order or money judgment, or a federal Notice of Lien. Secured promissory notes that deal with property division equalizations are commonly used as well as a security to obtain payment of non-support obligation and are a form of lien although of a different variety that what is discussed here.

Once you have recorded the appropriate document with the recorder's office (not the court clerk's office, although that office often has to issue the required paperwork that gets recorded elsewhere), the (former) spouse or domestic partner who owes the money is prevented from transferring, selling, or refinancing real property within that county until the lien is extinguished by you.

This occurs because all American states have registries that serve as a data bank and clearing house showing who owns what real property. These records include a "chain of title" history for each such property since written recording began in that jurisdiction.

In order to sucessfully transfer title, refinance, or even purchase real property in California free of encumstrances and debts to a transferee (whether purchaser, lender, or gift recipient), some form of "title search" must be undertaken - in California usually by title companies. These are a species of insurance company that issues a policy to title transferees for a fee. They must do a thorough title search to determine who the legal owner of the property is and whether there are mortgages or other liens that the law requires be paid in full before a "clear title" can ben exchanged.

Since title companies in California are essentially insurance companies, they have a financial interest in not paying out claims for title policies they issued when real property liens were property recording and so lurking in the background.

Liens filed in one county do not attach to property located in a different county. They are only effective for the amount of matured installments due (not for future payments). But even if the underlying principal amount changes - as where the amount increases over time or deceases with partial playments - there is no need to record a new one.

However, when a liened party dies and if they own the residence as community property, or a joint tenant, with another person, like a new spouse or domestic partner, the lien is extinguished and property passes free and clear to the co-tenant.

Otherwise, liens are only extinguished by a satisfaction of judgment or release of judgment lien.

I always recommend to my clients who are owed past due amounts of support, or where there is a property equalization that needs to be enforced, that they obtain a recordable judgment or order from the Family Court and record it in every California county where the obligor resides, might reside, might inherit - and certainly where that individual owns titled real property. At the same time, there are other enforcement remedies that can be concurrently pursued.

I have seen many situations where years after a lien is recorded that a title company or real estate broker calls to ask where 'so and so' is in order that they may be contacted so that the lien may be satisfied by paying the money and interest that is owed.

Of course, these liens are only effective when someone holds title to real property. You will need to use another enforcement remedy if they live beneath the home ownership radar. Here is another highly detailed look at how to enforce divorce judgments and support orders.

TW Arnold

Continue reading "ENFORCING SUPPORT: What is a REAL PROPERTY LIEN?" »

December 20, 2009
Posted By Thurman Arnold

Enforcing California Child Support and Alimony Orders

As a private person, you have a host of remedies. Some require the assistance of an attorneys, other may not depending upon your relative interest and motivation. These include:

Wage Assignment Orders

In all cases where California support orders are issued (or even if out of state support orders are being enforced here), a Wage Assignment Order (aka earnings assignment or income withholding order) must issue which includes arrearages if applicable and once they have been determined. Family Code section 5230. In order to be effective, these must be served by at least first-class mail upon the obligor's employer. Not later than 10 days thereafter, the employer is required to commence payments of the court ordered amounts so long as and only to the extent that they do not exceed 50% of the employee's net income per pay period. This must continue until the employer receives notice of termination of the order. These orders take precedence over any other kind of non-support assignment or wage garnishment. An employer who wilfully fails or refuses to honor the earnings withholding order is liable for the amount it should have paid over. Family Code section 5241.

Support Contempt Proceedings

A party who wilfully refuses to comply with any court order, and specifically an order for the payment of child support, spousal support, or an attorney fee order, may be guilty of contempt of court. Family Code section 290.

As to support, each monthly failure to pay all or any part of the court ordered support is one count of contempt, and each count subjects the contemnor to up 5 days in jail and a fine of up to $1,000. Because contempt potentially involves jail time, they are difficult and expensive to prove but they can be a very effective remedy for getting the attention and compliance of a party who values their freedom. You will not succeed without an attorney who has actual experience litigating them.

So long as you do not allege more than 35 counts of contempt, the other party will not be entitled to a jury trial but in any case if they do not have private counsel the family court is going to appoint the Public Defender's office to represent them in the contempt proceedings only. There is a 3 year statute of limitations for pursuing contempt for nonpayment of support and attorney fees; there is a two year statute of limitation barring all other forms of contempt of court orders.

Writ of Execution/Receiver

Support orders may be enforced like any other money judgment. This means that you may obtain a Writ of Execution and enforce a money judgment against bank accounts, or property, or even ask that a receiver be placed in a business owned by the obligor to collect money as it comes in.

Interest; Bankruptcy; Renewal of Judgments in Support Cases

Support orders accrue interest at 10% from the date of each installment becomes due. Family Code section 155. Courts do not have discretion to relieve the obligor of the interest. Interest is a serious matter, since at 10%, principal doubles every 7 years.

Unpaid support cannot be discharged in bankruptcy.

Support orders never die. California is one of the toughest states upon deadbeat father s and deadbeat mothers. You do not need to renew a support judgment in order to preserve it [Family Code section 291], unlike a 10 year rule of limitations for renewal of judgments that applies for almost all other types of civil money judgments. There is no defense for not paying a valid support order except possibly one - where the party entitled to the support order disappears and actively hides the minor child for whom the support is made during the entire period of minority, then perhaps an obligor may succeed in having a court vitiate the support order. However, the defense of laches (an unreasonable delay in enforcing a legal right) may be asserted against the State in cases where welfare was paid out for the benefit of the other spouse or a minor child but a long, long time passes before any agency undertakes action to recover it.

Attorney's Fees in Collecting Unpaid Support

You may also be able to recover your attorney's fees incurred for your enforcement action pursuant to Family Code section 3557.

UIFSA in California

The Uniform Interstate Family Support Act has been adopted in every state, and similar uniform rules for collecting support have been adopted in many foreign jurisdictions which allow for enforcement of orders here. The purpose of this uniform act is to augment and expedite spousal and child support enforcement, and even the collection of related attorney fees, wherever a support obligee (a parent who owes per a support order in any state) moves or can or might be found. This way, to the extent that someone relocates between States or simply works in a neighboring state, and whether or not they are avoiding a support obligation, support orders from any issuing state can be enforced quickly and efficiently.

If support orders issued in Maricopa County, Arizona need to be enforced in Riverside County, California, certified copies of the out of state decree are merely filed and registered here and immediately any and all of the remedies outlined above become available. Even if the support obligor doesn't live or work here, but owns property in this State, orders can issue that can enforced against personal property or real estate. The California UIFSA statutes are found at Family Code sections 4901 et seq. You don't need to be a California resident to take advantage of these rules.

Under certain limited circumstances child support orders issued in another state may be modified in California. This means that if a payor parent moves here, once the out of state support order is registered here it may be possible to modify it under more favorable California laws. Conversely, if parent and child live here and the payor parent does not but wishes to avail themselves of California law, they too may be able to seek a modification here. Once that occurs, California becomes the new jurisdictional situs for further support modifications and enforcement. However, although spousal support can be collected here, whether to modify it always remains under the control of the original state where orders were issued.

Child Support Civil Penalty

This may be an extremely effective tool for collecting delinquent child support in California: The child support civil penalty statutes found at Family Code section 4721 - 4728. Essentially if the statutory procedure is correctly followed, each and every unpaid installment of child support will incur a civil penalty of up to 6% percent per month.There is a maximum 72 percent of the original amount that can be imposed, but this 72% interest in a year! If this doesn't get the deadbeat parent's attention, it is hard to imagine what will.

To avoid the child support penalty once the requesting party has given proper notice of the delinquency, the obligor must pay the past due support money within 30 days. If they do not, the obligee (party who is owed) may file a motion for a judgment for the principal amount plus penalties and interest. This presents the last opportunity for the payor parent to work out a solution and convince the Court it is not fair to impose the penalty. Thereafter, the judgment is enforceable in the same manner as any other.

Child Support Security Fund

Another useful support collection tool in California is found beginning at Family Code section 4560. This allows the Court to order that the child support payor deposit into a court controlled account up to one year's worth of future support. This account is then used to guarantee the normal flow of monthly child support monies to the recipient parent. Family Code section 4570 provides that if monthly installment thereafter is more than 10 days late, the court shall order the recipient parent paid from that account and that the account be replenished. Obviously, this method is more likely to enforced as against an affluent deadbeat parent.

Department of Child Support Services Enforcement

If the Department of Child Support Services (DCSS) becomes involved, additional enforcement options come into play. DCSS must enforce orders where custodial parents are receiving State Welfare and other forms of governmental assistance. In such cases, they may also enforce spousal support orders.

Even if you are not receiving governmental aid you may assign your collection rights for child support to the Department and they must enforce these orders free of cost to you. However, they are over burdened, they are a bureaucracy, and they are not your personal advocate. There are pros and cons in utilizing their services.

For instance, they are able to intercept tax refunds and can access tax records that are otherwise confidential or that the other party just refuses to produce. They can force banks to give up information regarding cash flow. They can cause the California DMV to suspend a driver's license. They can take away Passports. They can suspend professional licenses. They can seek criminal prosecution for Penal Code failure to support crimes.

DCSS employees are overworked and underpaid. Still, if you lack funds and access to competent legal counsel, DCSS may aid you.

Author: Thurman Arnold

Continue reading "ENFORCING SUPPORT ORDERS in California" »

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August 29, 2009
  Is OVERTIME considered in fixing CHILD SUPPORT?
Posted By Thurman Arnold

Q. Is overtime a factor in considering child support?

Ted, in Fontana

Yes, if there is already a history of overtime - meaning a court won't order a parent to work overtime who hasn't been earning overtime (there is case authority that a court cannot order a parent to work more than a regular work regimen), but if they have already been working it, then the court must take that history into account when projecting future income for purposes of guideline support (Xspouse or Dissomaster, depending which California county you are in).

The black letter rule is that overtime earnings must ordinarily be include in the parent's gross income. County of Placer v. Andrade (1997) 55 Cal.App.4th 1393. These earnings may be excluded if:

  • There is evidence that it is unlikely it overtime income will continue as, for instance, where there has been a change in employment conditions or possibly if the parent is no longer willing to accept voluntary overtime;
  • Imputing overtime in the calculation would force a parent to work an "excessively onerous work schedule". Marriage of Simpson (1992) 4 Cal.4th 225, 228, 234-235.

When a parent ceases to work overtime, requires the parent's income to be tied to an "objectively reasonable work regimen." This is defined by "established employment norms." Much may depend upon the parent's occupation, since many people work more than 40 hours per week.

Note that when a parent takes a second job to make up for the impact of support payments, that income must also be factored in. If it is earned, it must be included. Some courts may impute overtime if a parent thereafter stops working it, as long as the work regimen is not excessive.

Please see this Blog article about temporary support. These principles apply equally to spousal support. Andrade is a child support case against a county collection agency. Simpson involved a determination of both child and spousal support. In that case the trial court had found that the father's shift in work was motivated primarily by his desire to shirk his family obligations. One of the things that compelled this finding was the timing of dad's change of employment - immediately after the court's initial support awards, surprise! It was therefore a simple matter to imply an earning capacity equal to what he was doing before the divorce, and before he switched jobs.

For more articles about overtime and support, click here!

Author: Thurman W. Arnold III

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