Entries Tagged 'Missives on Family Law' ↓

Divorce–LA Dodger style

The news that Frank and Jaime McCort—the owners of the Los Angeles Dodgers—are getting a divorce raises some interesting issues. Assuming that the Dodgers are community property as defined by Family Code § 760 or quasi-community property as defined by Family Code §125(a), each of the McCorts would be entitled to 50% of the ball club (Family Code § 751). And application of the”equal division” rule (Family Code §2550) would require the divorce court to divide the value of the Dodgers equally or, pursuant to Family Code § 2601, to award one party, either Frank or Jaime, the team subject to an offset to the other party. It is also interesting to recall that when the McCorts purchased the team from Rupert Murdoch (remember him?), the McCorts were not considered “sports club team rich.” Frank McCort had made his money in  the parking lot business (not a super glamorous field). At the time, their purchase was highly leveraged.  Since the Dodgers are a privately held company, there is no way to know the overall debt of the company.  BUT IMAGINE THIS—if the Dodgers are the McCorts’ single largest asset, and neither of them can obtain the leverage to buy the other out, the divorce court may order the Dodgers sold (Family Code § 2553). Recently it has been reported that Rush Limbaugh has been having trouble getting NFL approval in his attempt to buy the St. Louis Rams. Maybe Rush would give up his quest to buy a football team and buy baseball’s Dodgers instead… Hmm. I shudder at the thought.

The smart way to modify custody

Regardless of whether you have to show best interest of the child or a change of circumstance to modify a particular custody order, what I have found to be most effective and successful  way to modify custody is to use, what I call, the incremental approach.  This method  takes the “meta” view of the custody order and all the players involved.  Rather then request a significant change in the child sharing arrangement(i.e. alt. weekends and every Wednesday overnight to alt. weeks) you  request something  that is a natural outgrowth  from the existing order—using the above example, you would request moving the every Wednesday overnights to Thursday and a Monday overnight tacked on to your weekend. As such, on your weekend you would have the child Thursday to Tuesday morning and every Thursday.  This request is child focused in that the change is not that different from the schedule the child is used to and doesn’t require the Court to make a radical change/modification.  Plus, it gives you the added benefit of having a success in court— so that in the future, when  you want to get more time the other side will recall how the court viewed your past request as reasonable, and they may approach your new request  with more openness.

Can a gift be considered Income For Child Support?

Prior to February 26, 2009 the answer would have been no.  California Family Code §4058 defines gross income available for child support.   Although there is “catchall” language in the section(i.e., “including but not limited to”) the section’s definition is pretty broad and comprehensive.  One thing that the definition has never included are gifts(unlike spousal support–see In Re Marriage of Shaugnessy(2006) 139 Cal App.4th 1225)…At least until the decision of In Re Marriage of Alter, issued by the 6th Appellate District on 2/26/09. The case makes for very interesting reading, and the court decided a plethora of issues ; however the ruling on considering gifts as income for child support does stand out. In a nutshell, the court found that when gifts are of a recurring nature(as opposed to one time largess) it is within the sound discretion of the trial court whether to include them in income for purposes of  determining guideline child support . One of the classic arguments against including gifts as income for child support, has been that there is no guarantee  that the gifts will continue.  The appellate court made short shrift of that argument, analogizing the uncertainty of receiving gifts to the underlying uncertainty of having a job–if you loose a job you file a modification of child support; the same would be true if the gifts stopped coming—  file a modification….This case adds a little more discretion to making an order  of child support.  For years it was just what the computer kicked out…now there is more wiggle room to what actually goes into the computer/calculation when dealing with a guideline California child support  order.

The nice guy finishes last rule in Child Support

Maybe it’s the inherent goodness in someone or a case of the guilties, but it is not uncommon  for a payor of child support(usually a man) to want to continue child support payments until the child is 21 or 25, as long as the child stays in school. THIS IS A BAD IDEA.  In California, pursuant to Family Code § 3901 , child support normally terminates when the child turns 18 or is a full-time high school student who is not yet 19.  However, if a payor wants to continue paying support for that child as the child goes to college and/or graduate school that is a nice gesture–BUT SHOULD BE DONE INFORMALLY , AND  NOT PURSUANT TO A COURT ORDER. Family Code §3587 provides that the parties may stipulate to an order to pay child support for a child beyond the age of termination and (now the kicker) the court can make “an order to effecuate the agreement“. Arguably, this provision allows the Court to continue to exercise its statutory power to order  Child Support pursuant to The California Child Support Guidelines.  So the court can, if the facts were right, increase the  agreed amount of child support, to be in accordance with the California Child Support guidelines. Although the recent case of Edwards v. Edwards(2008) 162 Cal App.4th 136. 75 Cal Rptr. 3d 458 suggested a way to handle/end a child support Order for a child past the age of majority, the moral is simple: if you want to pay child support for an adult child, do so voluntarily and not  subject to a court order.

If You “Quack” Like a Father…..

Men often believe that if a DNA test absolves them of being a biological parent, they are off the hook for child support. Au contraire … Evolving Case Law and Statutes say otherwise. For example, California Family Code § 7611 (c) provides an alternate non-biological way a man can become a parent. It states: “After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(d) He receives the child into his home and openly holds out the
child as his natural chil
d.

What does that mean? A man’s actions, after knowing he is not the child’s father, can lead to a situation (if everything else is in place) that creates a parent/child relationship, where one can be obligated to pay child support for a non-biological child. Of course you would then have rights of child custody regarding the non-biological child … but that is for another post.

Joint Legal Custody—meaningless?

In any kind of child custody case in California, the vast majority of non-custodial parents get awarded joint legal custody. Great—but what does it mean? Do now all of the major decisions in the child’s life have to be made jointly ? Simple answer–no.  Family Code § 3083 defines joint legal custody as where either party, acting alone, may exercise legal control of the child.  Therefore  as one of the child’s legal custodian you can  take him/or her to the Hospital to get medical care. If little Dick or Jane wants a tattoo, you can authorized that.  What joint legal custody doesn’t give you is joint decision making regarding the child. Unless the Court specifies what areas joint consent is required, the custodial parent will always win out in the event of a conflict. Why? Because Family Code § 3048 states that any exercise of joint legal custody cannot be inconsistent with the physical custody order … Meaning?  If the custodial parent lives in Glendale and you, the non-custodial parent but a holder of joint legal custody, lives in Torrance, you have the legal right to enroll little Dick or Jane in school in Torrance — but that wouldn’t hold-up, because the custodial parent lives in Glendale and going to school in Torrance would be inconsistent with the physical custody order. What to do? Make sure that when the Court makes an order of joint legal custody, that it specifies the area where where mutual consent is required. Otherwise, joint legal custody is meaningless.

Child Support formulas–Just the facts

There is an interesting posting by about Massachusetts’ new Child Support  Guidelines.  The post/article provides a good general overview of the “big issues” involved with the philosophical/political underpinning of Child Support … In California the statewide guidelines for Child Support can be found in. Legal commentators have said that the California Child Support guidelines are so complicated that the average person could not figure out their support exposure without some type of professional assistance.  You could debate for hours the concept of child support and the appropriateness of any Guidelines.  But for the vast majority of divorcing parents (and parents involved in Paternity actions) what they need is a practical understanding of how the Courts will implement the Child Support guidelines in their particular case. That is something I try to provide to all my clients. As with most things in Family Law — Child Support is fact driven.

Do I still have to pay child support if I am not the child’s bio dad?

In California, generally no (there are situations—such as adoption by estoppel where a non-bio dad may be stuck with a Child Support Order, but that is for a different post). However, ones there has been a Judgment of Paternity, even having a DNA test that clearly “0pps you out” as the child’s father is not a perennial get out jail card that you can use at any time.  California Family Code §7645 provides  very specific time periods for when a motion to set aside a Judgment for Paternity has to be made.  Remember  a very simple rule–if you are served with a Complaint to Establish Parentage and for Child Support from  DCSS— DO NOT BLOW IT OFF!!!…That is the time to get some legal representation so that the situation can be handled and that you don’t wind up with an arrears order for Child Support that is impossible to ever pay down, and the child may not even be yours!!! The recent case of San Mateo County Department of Child Support Services v. Clark (2008) 168 Cal.App.4th 834, 85 Cal.Rptr.3d 763 discussed things you can do in furtherance of a motion pursuant to Family Code §7645( i.e. using a deposition subpoena to compel genetic testing)…but its preferable not to have to even go there by addressing the matter before it ever gets to a Judgment.

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