March 26, 2012
Family Law, Spousal Support
crimes, sex, spousal, support, Violent
There is a new bill going through Sacramento that would change the law that allows people convicted of violent sex crimes against their spouses to still be awarded support payments, community property, or other financial benefits.
The bill is being promoted by Carlsbad stockbroker Crystal Harris. Harris is responding to the fact her husband, Shawn Harris, who was convicted of sexually assaulting her, was able to convince a judge that she should cover his legal costs. She may also be liable for spousal support when he is released from prison.
Harris is urging the Assembly Judiciary Committee to approve legislation carried by Assemblywoman Toni Atkins of San Diego, that is crafted to bar that possibility in future cases. San Diego County District Attorney Bonnie Dumanis, a candidate for San Diego mayor, is the measure’s primary sponsor.
Opposition to the measure has been registered by the Association of Certified Family Law Specialists. In a letter to the committee, the alliance of attorneys argued that violent sex crimes could be considered a factor in determining support issues but should not necessarily be a black and white rule, thereby obliterating any discretion by the courts to consider mitigating factors or circumstances.
February 6, 2012
Child Support, Family Law, Spousal Support
alimony, child, divorce, military, spousal, support
In a case of first impression California’s Fourth District Court of Appeal has held that military housing and food allowances are to be taken into consideration when calculating child and spousal support. In the case, entitled In re Marriage of Stanton 190 Cal.App.4th 547 (4th Dist., Div. 1 Nov. 24, 2010), the court held this to be true even though such allowances are neither taxable nor subject to wage garnishment.
The facts of the case are as follows:
Husband Soloman Stanton had sought to reduce his temporary child support and spousal support orders to his wife, Carol. Upon divorce, the court had ordered Soloman to pay his wife temporary support for both her and their son. Soloman was a member of the United States Navy, and, at the time, the court had calculated the amount of support based in part on Soloman’s military allowances for housing and food.
In his request for a reduction, Soloman had argued that because federal law exempts a military allowance from federal tax and wage garnishment, the court had violated the federal preemption doctrine by including his allowances in its calculation. Under the federal preemption doctrine, Congress can preempt state laws.
However, after the hearing, the San Diego County Superior Court denied Soloman’s request for a reduction. The Court of Appeal affirmed the trial courts decision. It held that the federal preemption doctrine does not prohibit the inclusion of a military allowance when calculating either child support or spousal support. The court opined that the doctrine is inapplicable to family law unless Congress’s intent is clearly contrary to state law.
The Court of Appeal further determined that Congress had not intended for a military allowance to be excluded from child support or spousal support. In conclusion, the court stated that “the nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support.”
January 30, 2012
Family Law, Spousal Support
Long term, spousal, standard of living, support
When it comes to long-term spousal support, Family Code § 4320 is the guiding light. This is the section that lists the mandatory factors family law courts must consider when determining long-term spousal support.
Family law judges do not simply determine spousal support by reference to one factor or another. They must weigh and apply all of the factors stated in Family Code § 4320. Any spousal support order not reflecting a weighing of these statutory factors is subject to reversal for abuse of discretion.
Family Code § 4320(d), which considers: “The needs of each party based on the standard of living established during the marriage,” is probably the most indeterminate statutory factor the family law judges must weigh and apply in each case.
The case of Marriage of Smith (1990) 225 Cal.App.3d 469 supplies the generally accepted guidelines for marital standard of living. It held the marital standard of living to mean:
“…the general station in life enjoyed by the parties during their marriage. The Legislature did not intend it to be a precise mathematical calculation, but rather a general reference point for the trial court in deciding this issue.”
There are two general approaches to quantifying the marital standard of living. They are:
- Expenditure based, and
- Income based.
The expenditure based approach considers all spending records (cash and credit) for the last few years of marriage and categorically summarizes the spending.
The income based approach requires relatively few documents and both its strengths and weaknesses are attributable to simplicity. The income base approach summarizes historical tax returns and assumes that all after-tax dollars are subsequently consumed. In other words, all available dollars are either spent, saved, or invested.
Based on the case of Marriage of Weinstein (1991) 4 Cal.App.4th 555, this approach is the preferred method when the parties lived beyond their means. Or, in other words, when the marital standard of living was subsidized by credit.
August 8, 2011
Family Law, Spousal Support
divorce, Dodgers, Frank, Jamie, McCourt, spousal, support
Did you see the CBS news piece where Los Angeles Dodgers CEO Jamie McCourt has asked the family law court to continue ordering her soon-to-be-ex-husband to pay more than $600,000 per month in spousal support – in spite of the fact the Dodgers recently filed for bankruptcy. Hmm, we ask. And where might Frank McCourt continue to come up with this not-so-modest sum of cash?
Well, in her opposition papers filed last week in their divorce case, Jamie said that should be no problem. Frank has access to more than “$70 million in income and assets” that should be able to help him satisfy such a large support order. Of course poor Frank, in his moving papers, didn’t agree. He felt his payments should be more in line with the paltry $5 million he receives annually. And we, the fans and distant observers, can only sigh and blink our eyes at the unreality these two face; the problems we wish we had to deal with.
Stay tuned. Their hearing is set for August 10th.
July 18, 2011
Family Law, Spousal Support
Donna, family, law, Santo, spousal, support, temporary
One of the most common issues regarding a family law order to show cause is temporary spousal support. Any motion involving temporary spousal support would begin with Family Code §3600. This section provides that the court may order a party to “pay any amount that is necessary for the support of the wife or husband.” This has been interpreted by the courts to be the maintaining of the status quo, subject to the general criterion of “Need” and “Ability to Pay.” In re Marriage of Schulze (1997) 60 Cal.App.4th519, 70 C.Rptr.2d 488.
The reality is that in family law, “Need” and “Ability to Pay” are at opposite ends of the same spectrum. “Ability to Pay” applies to the income of the high earner in the relationship, while “Need” is the income of the low earner.
July 4, 2011
division of assets, Divorce, Family Law, Spousal Support
2610, benefits, code, divorce, Donna, family, plans, retirement, Santo
Retirement plans and the community benefits to be derived therefrom are covered under California Family Code §2610. According to the code, with some exceptions, in a dissolution action the court shall make “whatever orders are necessary or appropriate” to ensure that each party receives the party’s full community property share in any retirement plan, whether public or private, including all survivor and death benefits. This might include the court ordering one party to elect a survivor benefit annuity or other similar election for the benefit of the other party, as specified by the court, in any case in which a retirement plan provides for such an election, “provided that no court shall order a retirement plan to provide increased benefits determined on the basis of actuarial value.”
June 6, 2011
Child Custody, Family Law, federal, military, Spousal Support
allowances, child, family, law, non, Servicemen, spousal, support, taxable
For anyone who serves in the military an important case has come down that might affect their obligations to pay spousal support and child support. The case is In re Marriage of Stanton, (11/24/10), 4 Civ D056713, Div 1 (McConnell) 2010 WL 4751776, in which the California appellate court held that a serviceman’s non-taxable allowances for housing and food are includible in his or her gross income for purposes of calculating child or spousal support.
In deciding this case of first impression, and in following a majority of out-of-state decisions, CA-4 concluded that:
- The Federal preemption issue may be considered on appeal because the trial court had the jurisdiction to consider it;
- Nontaxable status of military allowances does not mean that Congress intended federal law to preempt child or spousal support;
- Protection of military allowances from garnishment does not support preemption;
- USSCT authority exempts family law support matters from federal jurisdiction unless federal law requires preemption;
- BAH and BAS statutes do not specifically require preemption; and,
- Family Code Section 4058(a)(1) precluded the trial court from considering mother’s spousal support payments from father as part of her gross income for child support purposes.