TLD's General Counsel Blog

ENFORCING FAMILY LAW ORDERS BY CONTEMPT IN CALIFORNIA

In general, family law orders and judgments are enforceable by contempt.  Disobedience of any lawful judgment, order or process of the court is a contempt of the authority of the court.

Support orders: Child, spousal and family support orders are based on an obligation arising out of marriage and parentage and are imposed by law.  They are enforceable by contempt.

Child custody/visitation orders: The court may invoke its contempt power against a parent who unjustifiably interferes with the other parent's court-ordered visitation rights or violates an injunction restraining relocation with the children. 

Attorney fees/costs orders: Need-based attorney fees and costs are awardable by statute in marital proceedings.  The award is based on a law-imposed obligation and is enforceable by contempt.

Community property division orders: A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt.

Restraining orders/Family Code protective orders: The court may invoke its contempt power to compel compliance with valid protective orders and restraining orders issued in a domestic relations proceeding.

Statute of limitations: The contempt remedy for noncompliance with a court order made under the Family Code is subject to a statute of limitations.  For an alleged failure to pay child, family or spousal support, the contempt action must be commenced no later than three years from the date the payment was due.

A contempt cause of action for nonpayment of support may be broken into separate 'counts' for each month payment was not made in full.

A contempt action to enforce any other order made under the Family Code must be brought within two years from the time the alleged contempt occurred.

Facts needed to prove contempt: The facts generally necessary to establish a prima facie contempt of a family law order are: (1) rendition of a valid order; (2) the citee's knowledge of the order and (3) the citee's willful disobedience of the order.

Punishment: Contempt punishments for a first time violation is county jail for up to 5 days or 120 hours of community service or pay a fine of $1000 for each count.  For a second time violation, the person can be put in county jail for up to 5 days and do up to 120 hours of community service, and pay a fine of $1000 for each count.  For a third and subsequent violation, the person can be put in county jail for up to 10 days and do up to 240 hours of community service and pay a fine of $1000 for each count.

The Court can also order the person found in contempt to pay attorney fees and costs to the other person.

DENISE RICHARDS VS. CHARLIE SHEEN: DIVORCE FINALIZED BY BIFURCATION 'STATUS ONLY' JUDGMENT

Denise Richards' divorce from Charlie Sheen has been finalized.  Denise Richards filed for divorce in March 2005 after three years of marriage.  The divorce petition was filed in Los Angeles Superior Court.  Richards cited 'irreconcilable differences' for the split.  The couple have a daughter and at the time Richards filed for divorce, she was 6 months pregnant with the couples second child.  (Pregnant Denise Divorcing Charlie)

Although the couple are officially divorced, the proceedings are hardly over.  The parties were divorced by 'status only' judgment.  They still have to agree on division of assets and custody. 

Bifurcation of issues for trial (also known as 'status only' judgment) allows parties to officially terminate their marriage and decide the remaining disputed issues for a later determination (i.e. property division and custody). 

California policy encourages parties in a dissolution action to bifurcate trial whenever it might expedite settlement or simplify the determination of other contested issues.

A bifurcated proceeding is particularly appropriate where the parties want their marriage terminated as soon as legally possible (e.g., so they will be free to remarry) but substantial time will be required to resolve complex property, support and/or custody issues.

Bifurcation is also recommended in 'pivotal issue' cases, where the resolution of the bifurcated issue(s) is likely to simplify the determination of, or lead to settlement of other issues in the case. 

For instance, if the pivotal issue is the determination of business goodwill, a bifurcated trial resolving this specific issue may lead to the settlement of the remainder of the case.  California rules suggests that the following issues may be appropriate to try separately in advance: (1) the validity of a postnuptial or premarital agreement; (2) date of separation; (3) date to use valuation of assets; (4) whether one or more assets are separate or community property; (5) how to apportion the increase in value of a business; and (6) the existence or value of business or professional goodwill.

A bifurcation request must be made by noticed motion or OSC.  Certain forms and documents must be served on the other party.

Public policy favors bifurcation for an early 'status only' judgment, because it furthers the legislative intent that marriage dissolution should not be postponed simply because issues relating to property, support, custody or attorney fees are not ready for dissolution.

For most divorcing couples, the mental stress and strain are relieved once the divorce is final.  'Status only' judgments help to accomplish this goal.

When Can an Employer Terminate a Disabled Employee After Leave is Exhausted?

As the Federal District Court stated in the case Garcia-Ayala v. Lederle Parenterals, Inc., an employer under certain circumstances can terminate a disabled employee after legal and/or company policy leaves expire.  The factors that will be taken into consideration are:

1.  Whether the time allowed for leave under the law or company policy has expired and prior extensions have been exhausted (the more extensions granted, likely the more legitimate the termination);

2.  Whether the employee has given a definite date for return (generally, termination in the face of a return date certain will be less reasonable than termination in the face of an uncertain return date);

3.  The length of that anticipated return date beyond the original or extended date of leave expiration (if the anticipated return date is a short time vs. a longer time, then there will be heavier burden on the employer to justify a termination);

4.  Whether the length of additional leave requested, or the absence of the disabled employee, will cause undue hardship on the employer based on statutory factors.

The general rule is that the employer cannot have blanket termination policy after leave is exhausted but must consider each case on an individualized, interactive basis. 

CALIFORNIA SPOUSAL SUPPORT FAQ's

1. Is spousal support mandatory?

A spousal support award is not mandatory in divorce or legal separation cases in California.  Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is earning significantly less than the other spouse or is unemployed.  The propriety of a California spousal support award is judged broadly by the parties' "circumstances" in reference to the standard of living established during their marriage and their respective needs and abilities to pay.

The Superior Courts of Orange and Los Angeles Counties have adopted a spousal support guideline for use in setting temporary spousal support.  This guideline provides that the obligor's spousal support is to be 40% of net monthly income, reduced by one-half of the recipient spouse's net monthly income.  If child support is being paid, the guideline level child support is first calculated.  Then, spousal support is determined.

2. How is the amount of spousal support determined? 

The Courts are bound to consider 14 statutory factors in making a California spousal support order.  Some of the factors include but are not limited to: (1) ability to maintain marital standard of living in light of earning capacities; (2) contributions to other spouse's education, training, etc.; (3) supporting spouse's ability to pay; (4) "needs" in light of marital standard of living; (5) parties' assets and debts; (6) duration of marriage; (7) employability of custodial spouse versus impact on children; (8) age and health of the parties and (9) history of domestic violence.

At the trial of the dissolution, the judge will consider the 14 statutory factors in determining the amount and duration of spousal support.

3. How long will my spousal support last?

The duration of spousal support is closely linked to the length of the marriage.  Many attorneys speak of the "rule of thumb" that spousal support will last for one-half the length of the marriage. 

The duration of spousal support is left to the sound discretion of the court.  In general, where the marriage has lasted more than 10 years, the court will, at the very least require a "reservation of jurisdiction."  This means that, even if there is no current order for spousal support, the wife or husband may come back to court at a future date to request spousal support should the need arise.

4. Do I have to report the receipt of spousal support as "income" for income tax purposes?

The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as "ordinary income."  Thus, it is not uncommon for a negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefits to the obligor spouse.

5. Does Spousal Support awards apply in Domestic Partnership Dissolutions?  Virtually all of the rights and obligations applicable between spouses under California law now apply to registered domestic partners -- including spousal support during the partnership and after it is terminated.  Accordingly, references herein to "spousal support" should be deemed also to include "partner support."

2006 Employment Law Cases Affecting Employers in 2007

The following article is a listing of pertinent cases in 2006 that will have an affect on employers in the upcoming year, 2007. Listed in the article is the case name and a brief outline of the courts rulings in those cases . These cases cover a wide range of topics, from civil rights violations to sexually explicit material on employee computers.

WHAT IS A QUIT CLAIM DEED AND SHOULD I SIGN ONE OVER TO MY SPOUSE?

A quick claim deed is actually called a quit claim deed.  A Quit Claim Deed transfers whatever interest or title a grantor may have without warranty.  Even when a quit claim deed is signed, it does not release the person from the loan.

A Quit Claim Deed gives up ownership of your home and associated rights and responsibilities.  It operates to release any interest in a property that a person may have, without a representation that he or she actually has a right in that property.

Couples who are divorcing often use a Quit Claim Deed by one spouse to transfer real property ownership to the other.  A Quit Claim Deed is often executed when the property isn't sold.

Before you sign a Quit Claim Deed during the pendency of your divorce proceedings, you should seek legal advice.  You could potentially be transmuting your community property into your spouse's sole and separate property.

CAN I MODIFY MY CHILD SUPPORT ORDER?

Child support orders are modifiable long after the judgment's finality.  Subject to certain limitations, child support orders are modifiable at any time as the court deems necessary.

The family law court has primary jurisdiction over modifications.  Once a marital status/dissolution action has been filed, the family law court's jurisdiction attaches.  Disputes over the modification of child support should ordinarily be heard in the family law action in which the original support obligation was imposed.  Many times, parents relocate to different states or countries and in that instance, there is a bases for shift in jurisdictional situs.

Reason for Modification: Generally, courts will not modify or revise a child support order unless there has been a 'material change of circumstances.'  There are no rigid guidelines for determining when the circumstances have sufficiently changed to warrant a child support modification.  The determination is made on a case-by-case basis and may turn on the facts particular to each individual case (such as ability to pay or need).

Ability to pay: A change in either parent's financial position is not an automatic ground for modification.  The court will examine both parties' circumstances and will evaluate the circumstances according to statutory factors set forth in the Family Code.

Parent's increased wealth: the obligor parent's enhanced wealth often itself will be ground for increasing the child support level. 

Earning capacity vs. Actual earnings: the parent's actual earnings are not always the controlling question when calculating the obligor's ability to pay.  The court has discretion to consider the earning capacity of a parent as opposed to the parent's income, so long as it is in the best interests of the children.

Can both parents agree to modify support? The parents may agree as between themselves to increase court-ordered child support payments at any time and under any circumstances.  The agreement should be reduced to a writing and signed by both parties.

Can my ex-spouse's/new mate's income be considered? Trial courts may not consider the amount of support the income of a parent's subsequent spouse or nonmarital partner makes except in specified 'extraordinary cases.'  For example, new mate income may be considered if child would otherwise suffer 'extreme and severe' hardship.

Bottom line: Child support modification is determined on a case-by-case basis with the best interest of the minor child at the forefront.