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What To Do When A Family Court Order (Child Support, Visitation, Debt Responsibility, etc.) is Ignored?

Clients often ask me what they can do when an ex-spouse or former domestic partner violates or ignores a Family Court order regarding child support, visitation rights, restraining orders, etc. If such a violation occurs, they ask, shouldn’t the offending party be subject to a contempt of court action?

In California, most contempt of court actions relating to Family Court orders are considered criminal proceedings. When such an action is brought in Family Court, the person charged with contempt has the same rights as anyone facing criminal prosecution. This includes the right to an attorney, the right to a formal reading of the charges against them, and the right to testify and cross-examine witnesses. As for prosecuting such an action, there is generally higher burden of proof involved where the accused can be found guilty only if the admissible evidence provides their guilt beyond a reasonable doubt.

If found guilty, the Defendant faces possible jail time, community service, and/or having to pay a substantial fine.

There are exceptions to what can be brought as a contempt action. For example, when the court orders one party to pay a debt obligation to a third party (such as a credit card company), a former spouse/partner cannot seek contempt for failure to pay. California, like most states, do not allow criminal charges for failure to pay consumer debts.

With all of the above in mind, many people who believe they have been wronged as a result of their ex-spouse/partner’s violation(s) of court order(s) think it’s a no-brainer to file contempt charges and throw the “dead-beat” in jail, especially if the other side fails to pay court-ordered support.  However, I offer a word of caution: often incarceration leads to additional, future issues.  A person responsible for paying support may have trouble paying support when he/she is not working due to being in jail and the conviction/jail sentence may cause that person to lose his/her job permanently.

If you still desire to pursue contempt charges against a spouse or partner, you will need to make sure your pleadings specifically set out your claims.  Here are a couple of tips:

Burden of Proof. To establish contempt of a Family Court order, you have to show (1) you have a valid court order, (2) the other party has actual knowledge of that court order, and (3) the other party willfully violated that court order.

A valid court order 

Contempt can only be brought when there is a violation of a valid court order.  Any agreement between parties that’s hasn’t been accepted by the Court as its order is not enforceable by contempt. If you assert to the Court that the other party “promised” by email or text to make pay you child support or allow visitation with your child but no court order has been issued, your contempt action will likely be turned away.

Knowledge of the court order 

The person you wish to have charged with contempt must be shown to have knowledge of the existing Family Court order. This requirement is usually met if the Court entered orders after a hearing attended by both parties.  However, if you proceeded with obtaining orders by default—i.e., a situation where the other party didn’t participate in the original court proceeding where the support obligation was ordered —you must prove that person actually received (and has knowledge of) the court order.

Willful violation of the court order 

The person being charged with contempt must be shown to willingly defy the Family Court order. In a situation where that person is in jail or otherwise incapacitated (and therefore unable to earn money to make payments), a contempt action probably won’t result in the desired outcome.

Be Specific. In my experience, many contempt actions get tossed out of court because the description of the violation is too vague or ambiguous.

For example, charging someone with contempt because he “always fails to make regular monthly child support payments” generally won’t hold up as a valid count of contempt. However, being specific—“In January 2015, my ex-husband was supposed to pay $1,000 in child support and he didn’t make the payment”—is a much better charge.

In general, always be prepared to provide your attorney with specific details about your matter.

Contempt of Family Court order actions do have their place in enforcement of orders, but usually are a last-ditch effort.  Fortunately, there are other means by which to enforce a court order to pay child support, to ensure a parenting plan is adhered to by the other party, and to try to make sure each party takes responsibilities for their respective obligations under court orders. If you are banging your head against the wall because the other side refuses to cooperate with court orders, seek the advice of an experienced attorney to explore your options and take the appropriate steps to get the relief you desire.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

What Happens When You Marry Someone with Support or Debt Obligations?

These days, it’s not uncommon for a person to marry someone who comes with some financial “baggage”—that is, with debts or support obligations of some kind. Here’s a fairly typical scenario:

Jane comes to my office seeking information about getting a pre-nuptial agreement. Her fiancé, Frank, is saddled with several types of obligations. Her fiancé underwent a horrible divorce from his first wife and Jane believes the ex-wife will go to any lengths to get what she can from him—including having her attorney subpoena Frank’s financial institutions for information on his various accounts. Naturally, Jane wants to know, if she proceeds to marry Frank, is she exposed to similar legal actions?  What is her risk with respect to his spousal support, child support and/or any debt Frank has incurred?

Let’s take a look at each type of obligation and see how Jane may or may not be involved:

Spousal Support

 In California, a new spouse’s income or assets generally has no effect on the spousal support obligation of their new partner. In other words, what belongs to Jane in terms of property or income is not connected to Frank’s spousal support situation. The Court doesn’t use this new information to re-calculate or otherwise alter the amount of support Frank is obligated to pay his ex-wife.

There is one notable exception: If, after remarrying, Frank were to quit his job or become a stay-at-home spouse (because his new wife has a well-paying position) and then attempt to either terminate or decrease the amount of spousal support he’s obligated to pay, the Court would likely see this as an intentional attempt to evade his legal responsibilities – and may not change his spousal support obligation.

Child Support

Again, in California, Jane’s assets generally do not come into play in a situation where Frank is paying child support related to his previous relationship(s). But, as noted above, it’s a different story if Frank decides to leave his job or otherwise decrease his income. Under California Family Code Section 4057.5, the income of a new spouse can be used “in an extraordinary case where excluding that income would lead to extreme hardship to any child subject to the child’s support award.”

The court will always be guided by what is deemed to be in the child’s best interests.

Debt

When it comes to debt obligations, Jane’s potential risk is a different matter entirely. With a new marriage in California, what both parties own together is automatically subject to community property law (e.g. anything acquired during the marriage is presumed to be split 50-50 between the spouses). If Jane puts Frank’s name on any of her assets – for example, adding his name to her savings account or on the deed to the house – creditors can now pursue what Jane considers her property for repayment of Frank’s debts. Her assets should remain untouched if her name is the only one connected to those assets. Most creditors won’t go to the trouble of going after assets in the non-debtor spouse’s name.

Of course, where a house or similar large property is concerned and a lender or other entity requires the signing of a Interspousal Transfer Deed in the course of a refinance (placing title solely in Jane’s name), Frank essentially gives up his legal rights to ownership by signing such documentation. Should this second marriage end up in divorce, Frank may have no claim on the house and the property will be awarded to Jane as her sole and separate property.

A pre-nuptial agreement is an effective way to fully clarify both spouses’ debts and support obligations before marriage takes place and provide the parties with clear guidelines on how to handle their property and obligations throughout their marriage. That’s what I recommended to Jane and what I generally tell all of my clients facing this relatively common situation.

Getting married or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters. 

How Does the Court Determine Child Visitation Privileges?

In California, there is a presumption that, in general, a mother and father (or domestic partners) can work together to raise a child together, even after they no longer live together in the same household. This is called “joint legal custody” and it involves collaborating on decisions that directly affect the health, welfare, education and religion of the child (or children).

That’s one aspect of child custody. The other key component is called “physical custody,” relating to where the child actually lives and who takes care of him or her on a daily basis. Whether by a parenting plan agreement reached by both parties or through a court decision made due to a dispute of the parents, one of the two parties will be designated “primary physical custodian.” The conditions of that parent’s custody are subject to whatever visitation rights the other person receives—rights which can range from “no visitation” (in those rare cases where one party’s even seeing the child is deemed to be detrimental to the child’s best interests) up to equal periods of time with each parent.

Types of visitation include:

  • “Reasonable visitation” – The most common form of visitation, these rights can vary from visiting the child on weekends and alternating holidays to an equal timeshare (where each party has, in effect, equal rights of reasonable visitation with the child). A primary physical custodian is generally selected by the Court to cover a few critical areas, such as school placement of the child. This primary physical custodian is entitled to declare the child as a tax exemption and as a dependent on their income taxes—unless there is a prior agreement to the contrary.
  • “Restricted (supervised) visitation” – In these cases, the Court determines the child cannot be left alone with one party, so the other parent or a third party (friend, family member, social worker) must be present to supervise the visit. This can happen when the Court adhd decides that someone must be present to witness interactions between the child and the visiting parent, in the event of future legal disputes regarding child visitation rights, or just to make sure that there is a peaceful and, hopefully, meaningful visitation between a parent and a child.

An effective parenting plan should include provisions for regular visits (weekly, biweekly, monthly) as well as on holidays and vacation time with the child. The schedule can be different for different children in the family, such as situations when each child is on a different school schedule, or when children have different extracurricular schedules.

When determining the parties’ respective future rights to custody and visitation, the Court usually looks for answers to the following questions:

  • How were the two parties taking care of the child before the divorce proceedings began and since then?
  • Who has been the primary physical custodian?
  • Is the current arrangement working? Can it continue to work? Is it truly in the child’s best interests?

Obviously, the two parties involved may have differing answers to these questions, which then leads to the Court stepping in and deciding for the both of them.

In my opinion, the two parties in a divorce proceeding (or dissolution of domestic partnership) should do everything they can to attempt to work out a parenting plan agreement between themselves. After all, who knows the best interests of their child better than they do? When they can’t work it out, the decision is left up to a judge who doesn’t know either party or the child involved. And a prolonged legal dispute makes the whole experience more expensive, time-consuming and emotionally turbulent for everyone involved.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

What is Community Property and How is it Divided?

In California, “community property” is defined as the marital interest in an asset or debt that was obtained or incurred between the date of marriage/registration of a domestic partnership and the date of separation. When I initially sit down with a client who’s going through a divorce or dissolution of domestic partnership, I start by drawing two lines on a piece of paper: (1) DOM/DOR – date of marriage/registration and (2) DOS – date of separation. Then we begin itemizing each asset the client and/or his spouse/partner has an interest in (and his or her debt obligations) and determine where each item falls on the timeline — if the asset/obligation is entirely prior to the DOM/DOR or entirely after the DOS, the presumption will be that the asset/obligation is the “separate property” of the person whose name is on the asset/obligation. Everything else will be presumed to be, at least in part, “community property.”

A common misconception among clients is that community property is limited to any asset or debt that is jointly held. But according to California law, everything obtained or incurred in a marriage or domestic partnership between DOM/DOR and DOS is presumed community property. Each party has a 50% interest in that property and/or a 50% obligation, where debts are involved.

Evaluating Bob’s community property assets

Many assets have both a separate property and a community property component. During the course of the divorce or dissolution of domestic partnership, attorneys for both parties help evaluate assets in those terms and determine what each side is entitled to.

For example, let’s say Bob has $5,000 in a bank account on the day he marries Kathy. During the course of their marriage, Bob deposits and withdraws funds from this account, which is kept in his own name. The paychecks he deposits into that account during their marriage are community assets. On the date of separation, his bank account totals $15,000. Bob continues depositing funds (e.g. his paychecks) into that account, those post-separation funds being separate property. And, by the time of the actual divorce, the account has grown to $20,000.

How does this asset get divided between Bob and Kathy?

Here’s the calculation: Bob had $5,000 in the account prior to marriage and $5,000 of additional deposits after the separation. That’s $10,000 of Bob’s separate property. This leaves another $10,000 from deposit activity that took place during the marriage. This last figure is community property, to which Kathy is entitled to half. Therefore, Bob gets $10,000 in separate property and $5,000 in community property, and Kathy has a claim toward the remaining $5,000 as her interest in the community property portion of this asset.

Start documenting now!

My advice is, when you decide to initiate your divorce or dissolution of domestic partnership, try to obtain documentation about the value of any assets you had on DOM/DOR (and the balance of any debt obligation), as well as any other documentation as to how those assets or debts have been treated throughout the marriage or partnership. Of course, when two people embark on a marriage or domestic partnership, it’s difficult to think about what might happen to their property in the event of a dissolution. The longer you go in a marriage/partnership, the more difficult it becomes to retrieve that documentation. But such information can be crucially important in asserting your entitlements in the characterization and division of your assets and debts.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.