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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.

Develop a Game Plan for Separation or Divorce

If you and your spouse face impending separation or divorce, there are important legal and emotional factors to consider. Whether you intend to hire a lawyer to represent you in Family Court or you wish to represent yourself, here are several things to keep in mind:

Put a game plan together. The legal process of divorce or legal separation can be costly and time-consuming, but you can take action to avoid unnecessary expenses and time spent. The key, as I tell all of my clients, is preparation. Before embarking on the process of filing for divorce/legal separation, living through litigation and dealing with the final judgment, you should develop a game plan to see you through.   Create a budget for future expenses of the legal process, develop a timeline for where you want to be in the process at what times, attempt to anticipate potential obstacles (e.g. cooperation or lack thereof of your spouse) that may delay the process and identify possible solutions to avoid/alleviate those obstacles.

Shore up emotional support. Even under the best of circumstances, divorce is an emotional roller-coaster for everyone involved. There will be moments of happiness (knowing you’ve made a decision that hopefully improves your life), but there will be many more feelings of anger, depression, sadness and regret.

It’s easy to see, therefore, how maintaining one’s composure throughout the process is a real challenge. Get prepared by cultivating (or strengthening) an “emotional support system.” This usually consists of trusted family members, friends, a clergyperson, therapist or someone else in whom you can confide and share your feelings.

Prepare your children. Regardless of how amicable the impending process may be, your children will be negatively affected. There’s no way around it.

If possible, talk with your spouse or partner about how best to approach the children and explain what’s going on now and what will happen next. I don’t mean discussing the legal issues, rather, focus on how their lives will probably change during and after the process. Help them find a way to deal with their emotions and the prospect of separation anxiety that will likely occur. It’s far better to address this beforehand, rather than wait for children to act out as a result of the divorce/separation.

Compile your financial information. If you haven’t already done so, compile information and documentation about finances – both yours and your spouse – held individually or jointly – including assets, debts, income and expenses.

Once proceedings get underway, you’ll be glad you put all this together in advance.  Not only does it save time, but after the divorce petition is filed and litigation starts, even the most well-meaning people begin playing games, concealing important details about assets and debts, etc., that can lead to costly discovery efforts and will ultimately affect the final resolution of the key issues of support and property/debt division.

In many marriages, one or the other spouse is often in the dark about household finances. One spouse handles most, if not all, financial matters (paying bills, depositing checks, etc.) and the other person lives in “willful blindness” of the grand scheme of the household finances. That’s all well and good when people are in a happy situation with trust all around, but it’s the worst possible scenario in the event of divorce or separation. At that point, the person who hasn’t been involved is generally clueless about the status of individual and joint assets and what money went where – and definitely at a disadvantage  when it comes time to either negotiate a global settlement or present your case in court.

Set goals for life after divorce or separation. As difficult as it is to imagine, you will have a new life after this painful episode. Try to see yourself after the legal process is over. Where do you want to be after the divorce judgment comes in? What do you want out of the settlement and what are you willing to accept? (These questions apply both to finances and child custody, where appropriate.) The court expects you to be willing to negotiate, so your attorney needs to know ahead of time what is your “ceiling” (i.e. what would be optimal for you) and what is your “floor” (i.e. what you would accept) in the overall settlement of the various pending issues of your matter (e.g. custody, support, assets and responsibility for debts).

Again, preparing for the road ahead in advance of the legal process is the best thing you can for yourself and your loved ones. Otherwise that road will be a very bumpy one (and much more expensive than it has to be).

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.

Does Filing for Bankruptcy Get Rid of Support Obligations?

Is someone who relies upon support payments from his or her ex-spouse (either for themselves or for any children they may have) affected when their former spouse or partner files for bankruptcy?

When someone files for  bankruptcy relief under Chapter 7 or Chapter 13, that person’s creditors must immediately stop all collection efforts on their debt claims. This is known as an “automatic stay”—meaning, creditors are prohibited from actively pursuing the collection of an outstanding debt. Wage garnishments, foreclosures, and nagging phone calls from creditors all must stop.

But does the same principle apply when the issue relates to spousal or child support obligations?

The general answer is no—the automatic stay rule does not apply to domestic support obligations. In other words, regardless of the amounts involved or the reasons why a person decides to file for bankruptcy, alimony/spousal support and child support payments are considered priority debts and are therefore, in the eyes of the court, “non-dischargeable” and exceptions to the automatic stay.  The collection on these debts cannot be stopped by a bankruptcy filing, nor are the support obligations, both current and arrears, eliminated after a debtor completes his or her bankruptcy case.

In a Chapter 7 bankruptcy, ongoing support obligations must be paid during the pendency of the case. As for past payments due (arrearages), they will not only still be due and owing, but also they continue to accrue interest, even during a bankruptcy case, until paid in full.

With a Chapter 13 bankruptcy, things are a bit more complicated. Support obligations—both current and those in arrears—must be paid within the timeframe of the Chapter 13 plan, tramadol which is up to five (5) years. But under Chapter 13, you’re permitted to reorganize your debts in order to more effectively catch up with missed past payments (while of course meeting your current support obligations), which may lead to discharging at least a part of your non-support debt.

The challenge here is that if you enter Chapter 13 with significant back-support payments due, you will likely face high monthly payments due to a limit on the duration of a Chapter 13 plan to   five (5) years (60-months).

A related question I’m often asked: Can I (the debtor) avoid a request for an increase in support by filing for bankruptcy? Again, the general answer is no. In California, the automatic stay imposed by bankruptcy does not preclude a Family Court from determining new support obligations or modifying existing ones.

Bankruptcy is not a way to get out of meeting spousal and/or child support obligations. In any bankruptcy, the ex-spouse or child receiving support will always get priority status.

That’s why it’s in the best interest of all parties to make arrangements before bankruptcy sets in, so that support obligations continue to be met in a reasonable and reliable manner. Contact a family law attorney for advice on the best way to proceed in this situation.

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 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. 

Protect Your Assets by Keeping Records

When two people fall in love and decide to get married, they don’t want to consider the possibility that at some time in the future they may no longer feel the same way about each other – and that the experience of separation and divorce might turn ugly over issues of community assets and debt obligations.

Sadly, as we all know, this scenario happens all too frequently. But while divorce is an unhappy topic to consider before such a happy occasion as marriage, I believe it’s vitally important to do so. A well-considered and expertly crafted pre-nuptial agreement can set out rights and responsibilities, address issues of property characterization, and minimize the potential legal costs involved in a lengthy and contentious divorce.

Division is right down the middle

Here’s a common problem I see in my practice. A client comes in who’s been married a long time (10 years, 12 years, longer) but doesn’t have a pre-nup. This person is very unhappy at the prospect of having to divide practically everything he or she owns 50-50 – as generally is required by California community property law. Why? Because, the client says that they came into the marriage with substantial assets acquired well before anyone said, “I do.”

Since California is a community property state, we start with the assumption that, when it comes to property that has been acquired in the course of a marriage (that is, all the assets as well as debt obligations), the division almost every time will be right down the middle.

A possible exception occurs in cases where domestic violence is involved. If the court determines that one person has been severely injured and is leaving the marriage with substantially diminished capacity to acquire new assets and income, he or she may be entitled to more than a 50-50 division of assets and debts.

The importance of “tracing”

 But what about assets and debts acquired either before the marriage or after separation?  The key to asserting one’s exclusive rights to property acquired before marriage or after separation is through what’s known as “tracing.” If you can trace the timing of the acquisition of an asset to a date either prior to the marriage or after you and your spouse/partner separated, the court will, in most cases, take this as proof of separate property belonging to the person who acquired it. The same principle applies to assignment of debt in the divorce.

But tracing depends on accurate documentation – and that’s where many of us fall short. As in the long-term marriage I mentioned above, it’s easy to lose track of any documents you might have concerning the acquisition of assets 10, 15 or 20 years ago. Unless you can produce such documentation, it will be very difficult to establish that any specific asset should be deemed your separate property.

Things get further complicated when you have to reach out for assistance with documents. Many institutions like banks expunge records after a certain amount of time has passed. So when it comes to obtaining financial and investment information from long ago, unless you’ve kept good records on your own, you may be out of luck.

I can’t stress this strongly enough. Print out your important documents (bank statements, credit card statements, etc.) and keep them locked away. You never know when a particular document will prove useful in court.

How can you attempt to avoid all this drama and turmoil? Look into having a pre-marital agreement, even if it casts a momentary shadow over your upcoming wedding celebrations. It’s by far the best way for both parties in a marriage to identify and protect their separate assets and minimize the possibility of being liable for the other’s pre-marital debt obligations, if things take a turn for the worse somewhere down the road.

Is a pre-nup right for you or just have any questions regarding the above topic?  The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.  

When Divorce Happens Later in Life

Age is not a predictor of divorce. It can happen to anyone at any time. Many older people feel trapped in a burdensome marriage because they either feel they cannot move on financially without the combined income and resources they have grown accustomed to or feel they are too old to make such a drastic change in their life.

For example, I recently filed a divorce claim for a 92-year-old woman married to a 94-year-old man. Their marriage spanned more than 60 years. My client (let’s call her “Ada”) came to me through her granddaughter (let’s call her “Susan”). Susan informed me that her grandmother was not happy with her marriage and had not been for many, many years. Susan was concerned about what would happen to Ada’s property after she died. She was also worried about potential liability for her grandmother, since Ada’s elderly husband was still driving, even though the DMV had revoked his license. If he got involved in a car accident, Ada might lose everything.

Divorce was a reasonable option, so Ada could at least preserve some of the assets she’d accumulated over many years of marriage. Her husband initially contested the request for divorce but his subsequent death effectively resolved the situation.

Spousal support is a key issue

Broadly speaking, a typical older client seeking a divorce is (a) a husband or wife in a long-term marriage burdened by the usual issues divorce entails or (b) a couple who married late in life and realized they’ve made a big mistake.

Where the litigation of a divorce of a young couple tends to focus around child custody and/or child support rights, divorce in older couples often centers on property division and/or spousal support issues. (In general, issues presented in a late-in-life divorce don’t relate to having children, since children are usually grown and no custody disputes arise.) Spousal support issues occur more frequently with older spouses. In many cases, one party has decided to move on, putting their spouse (a stay-at-home mom or dad for the majority of the marriage) at risk for a substantial hair loss loss in household income and other resources. The previously dependent party’s only recourse is to seek support from their estranged spouse to address their reasonable needs after separation. This provides the dependent spouse with an opportunity to maintain their long-term lifestyle without having to remain married to someone who does not want to continue the marriage.

Maturity and wisdom help

In a long-term marriage, a couple has time to accumulate potentially substantial wealth. These sources of wealth might include real estate, retirement accounts, investments, etc. Without children as an issue, it’s often easier for clients to see the divorce proceedings as a business process. The maturity and wisdom that come with age also generally helps make the experience a little smoother for both parties involved.

Still, as with any divorce, the process can get expensive. It’s still an adversarial proceeding among two people. And in some late-in-life divorces, there may be more conflict between spouses as to whether the marriage is truly finished or not. Denial can be a complicating factor in these situations.

I advise all of my clients, regardless of age, to put together a “support team”—a friend or a mental health professional or a clergy person—to help them through and to serve as a sounding board. In addition, every client should seek the assistance of at least three (3) types of professionals when contemplating a divorce—a tax advisor, a financial advisor and a family law attorney. The more help you get during the process, the more informed decisions you’ll be able to make to ensure you receive what you are entitled to from your divorce and your future.

Feeling trapped in a long-term bad marriage 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.

What does “Spousal Support” Mean?

Spousal support (formerly known as “alimony”) refers to the obligation of one party in a marriage or domestic partnership to provide support to his or her former spouse or partner. California Family Code Section 4320 lays out numerous factors by which a court is mandated to award spousal birth control support. These factors include:

  • Duration of marriage
  • Available resources (including assets and income) of the person seeking spousal support
  • Ability of the other party to provide resources to the supported spouse
  • The reasonable needs and lifestyle requirements of the supported spouse

Spousal support is usually based on how much the supported spouse believes she needs (for purposes of this post, I’ll use “he” for supporting spouse and “she” for supported spouse, though of course it can easily be the other way around) and how much the supporting spouse believes he can pay. Somewhere between these two figures, a final number is determined.

In general, the issue of spousal support revolves around the style of living established during the marriage or domestic partnership. Let’s use this hypothetical example to explain:

Ron is a cardiologist married to Sheila, a schoolteacher. When they first got married, they agreed Sheila would be a stay-at-home mom. She quit her job, thus depriving herself of an income and moved from a rental apartment to an expensive house in La Jolla. During the course of their marriage, Sheila established a very comfortable lifestyle in their exclusive neighborhood. She had friends there and the couple sent their two children to a costly, local private school.

At some point, Ron and Sheila decide to separate. Sheila is unable to maintain this lifestyle on her own, nor can she realistically expect to do so even if she gets a job. Thus, under the law, she is reasonably entitled to spousal support that will help her live the same style of life to which she’s become accustomed. The question, of course, is how much and for how long? At this point, Ron will be obligated to either accept the terms of spousal support Sheila requests or to demonstrate (a) that he’s unable to make such payments or (b) that his separated spouse is over-inflating her anticipated expenses and/or understating her expected income and resources.

If the parties can’t agree on a figure, the issue goes before a Family Court judge.

There’s a common misconception that you can only get spousal support if you’ve been married or in a domestic partnership for a certain amount of time. The truth is, anyone can assert an entitlement to spousal support, no matter how long the marriage/partnership lasted. Typically, the Court’s reasoning goes as follows:

  • A marriage of 10 years or more: Unless the two parties can agree on a date to terminate spousal support, the obligation to pay support will continue until the supporting party can convince a court that this obligation should come to an end (if, for instance, his ex-wife now earns enough to support herself).
  • A marriage of less than 10 years: The two parties can agree on a date of termination for spousal support or the Court has some discretion to order a termination date. While this is not absolute, the unwritten practice is that the obligation lasts for roughly half the length of the marriage.

In my years of practice in this field of law, I’ve encountered many supporting spouses who feel aggravated by the ongoing obligation to support their ex-spouse. I try to lessen the aggravation somewhat by reminding them that, unlike child support, spousal support can be claimed as a deduction on their income taxes and that the supported party has to report what they receive as income on their taxes. A silver lining? Maybe just a little.

Wondering what you might face should your spouse or partner file for a dissolution of marriage/partnership or legal separation? 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.