Effect of Bankruptcy on Marital Dissolution Proceedings

Many times dissolution proceedings come at the heels of financial stress.  That being said, sometimes couples are forced to consider both bankruptcy and divorce at the same time.  How does the bankruptcy filing impact the dissolution proceedings (and vice versa)?

  • You can file for divorce even though bankruptcy proceedings are underway.
  • However it may be impossible to fully resolve the divorce while the bankruptcy is still underway, as property division is subject to the automatic stay requirements of 11USC Section 362(a).
  • Proceeding with the bankruptcy proceedings is not a violation of the Standard Family Law Restraining Orders on the Family Law Summons.
  • It is best to avoid transfers between spouses during the course of the bankruptcy proceedings, as “Strong-arm” clauses can force such property back into the bankruptcy proceedings.
  • An individual bankruptcy petition by one spouse can be amended to “add” the other spouse.
  • There is only one set of exemptions for both spouses–so bankruptcy post-divorce may make more sense in some cases.
  • Failure to pay child and/or spousal support during a Chapter 11 case can be cause to either 1) dismiss the case or, 2) convert it into a Chapter 7 case.

If you are considering filing for bankruptcy or have questions about bankruptcy, contact the Bodie Law Firm at (818) 377-7413 or by visiting http://bodiebankruptcylaw.com/

 

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From NPR News: Some Domestic Abusers Want to Change

Psychologist David Adams heads a program in Cambridge, Massachusetts, which is aimed at creating real behavioral changes in the perpetrators of abuse.  It is worth a list at the link.

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Annual Kid’s Count Study Results: California Children Doing Poorly

Each year the Annie E. Casey Foundation releases a report aggregating data from all 50 states and comparing key indicators of children’s health and well being.  How did California fair?  California didn’t score any better than they did in 2012–ranking 41 out of 50 states.  You can see the results here.

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Ben Affleck and Jennifer Garner on Marriage as Work

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Grounds for Modification of Custody & Visitation Orders

So, you have a permanent child custody arrangement and you want it changed.  Sometimes permanent child custody arrangements can be changed, even if they say “Final,” and even if the parties signed an agreement saying they wouldn’t change it.  See Family Code § 3022.  What are some reasons that would justify changing a permanent custody or visitation order?

Some Factors Related to Modifications of Custody:

  • —  Facilitation or Frustration of Visitation: Is the other parent denying you rightful contact with your child or failing to follow the court order?
  • —  Employment: Have there been any changes in your employment or the other parent’s employment? Are the children always in daycare or the care of relatives? Are you more available to spend time with the children? Has a change in your employment increased the amount of time you can devote to your children?
  • —  Geographic Distance: Do you now live closer to the children and can see them more often than you previously could?  Would more frequent custodial changes be more feasible because of a geographical change?
  • —  School Performance: How is your child performing in school? Maintain active in any parent/teacher conferences and investigate your child’s performance by interviewing his or her teachers. Is the child’s homework getting done? Do the teachers notice any unusual behavior?  Try and stay objective as best you can.
  • —  Home Environment: What kind of environment is the other parent providing? Are there any problems with child abuse, drugs, smoking, or any other conditions in the home? Does the other parent and his or her new companion behave appropriately when the child is present? Does the other parent’s companion have a history of criminal activity or abuse?  Does your child receive proper supervision?  Does the child have proper sleeping arrangements?  Are other children from a subsequent relationship living in the same household?
  • —  Discipline and Punishment: Is corporal punishment being inflicted upon your child? Is the child being punished by someone other than the parent?
  • —  Fitness of the Ex-spouse as a Parent: Has the other parent committed any crimes? Does the other parent have any substance abuse issues?  Does the other parent have other impairments that would make effective parenting difficult?

 

Substantial Change of Circumstances:

The law has become increasingly murky in this area.  It used to be that in order to modify custody arrangements, the moving party must show that there was a “substantial change of circumstances.”  Now, no one knows exactly what that means, but some substantial changes have been changes in employment (losing a job), moving from one city to another, one parent’s criminal activity, and major changes in the child’s conduct such as grades in school.  Recent changes, most flowing from the case Montenegro v. Diaz (2001) 26 Cal.App.4th 249, have made it unclear exactly when a substantial change is needed and when its not.  A substantial change of circumstances is generally required to modify a “Final” court order for custody.  See Montenegro.  Custody modifications that simply make adjustments in time, modifications of temporary order, and modifications of visitation generally don’t require a showing of a substantial change in circumstances.

If you are looking to modify your current custody arrangement, it is best to work with an attorney near you to discuss whether or not there are grounds for a modification and how that modification can be carried out in the court system.

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Supporting your lazy spouse (Imputation of Income and the evidentiary black hole)

So, you are getting divorced.  You spouse quits their job and files a motion for spousal support.  They would rather collect the spousal support check instead of working.  Are you just supposed to support your lazy spouse?  Is there a way to fight this?

When one party asks the court to assign income to their spouse because of their spouse’s ability to earn, this is called “imputation if income.” 

 

The Problem:

This is an all-too-common situation.  Many people who are not represented by counsel walk into court with a mountain of craigslist postings, online job postings, and proof of income from their spouse’s former job.  Their spouse’s attorney objects to each piece of evidence over and over.  One by one the judge sustains the objections—meaning they are not considered as evidence.  The reason is that those job listings are considered hearsay under the rules of evidence.  So what is the law and what should you do?

 

The Law:

In order to “impute” income to your spouse, you have to show they have both 1) the ability to earn and 2) the opportunity to earn.  In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291.  You don’t have to show any bad faith on their part—such as proving they are intentionally depressing their income.  In re Marriage of Kochan (2011) 193 Cal.App.4th 420, 428. 

In addition, job listings or online postings are inadmissible hearsay.  Evidence Code § 1200 et seq.  However, expert witnesses are allowed to rely on hearsay evidence when forming an expert opinion.  Evidence Code § 801. 

 

The Solution:

So, spouses attempting to impute income to their spouse usually have to resort to hiring an expert witness to testify regarding the ability and opportunity of their spouse to earn.  This expert is usually referred to as an “expert vocational evaluator.”  The problem is that this entire system increases the cost of litigation.  Instead of showing the judge 50 craigslist ads, you have to spend $3,000 to hire an expert.  Depending on you potential spousal support obligation, that may be money well spent.  However, this system ensures that only family law litigants with adequate means are able to get justice.  

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Divorcing in the Golden Years (surprise!)

Image

This recent article was inspired by Danny Devito’s divorce after 30 years of marriage.  The article attempts to describe a number of reasons why couples may divorce after a long marriage.  One recent study found, “The divorce rate among older adults has more than doubled since 1980, and 1 in 4 persons who divorces today is over age 50.”  So it seems that divorce isn’t just for thirty-somethings with children.  The big-D may be for couples of all ages.

 

When people are living longer healthier lives, are able to have sexual relationships later in life (thanks Viagra®), and since women are more financially independent than in times past—to some extent divorce at a later stage in life makes more sense than it did in the past. 

 

Divorce for seniors can lead to some very specific concerns. Division of assets and retirement funds at a relatively younger age (30s-50s) leaves divorcing couples with time to financial recover—but for most seniors who are divorcing, there is much more finality to this division and no work-life to recover from the financial repercussions.  In addition, assisted living facilities are not cheap.  Attempting to support both spouses in such facilities post-divorce may be too much for the community to bear.  And although children are no longer young, adult children acting as caregivers may have a difficult time coping with their parent’s divorce. 

 

However, in some ways divorce for older couples is simpler.  Retired couples need not worry about the bread-winner quitting their job, child custody and child support are not an issue at all.  At the same time, it may be more important for the parties and their counsel to work together—towards a creative solution.  Due to the possibility that the payor spouse may die and no longer be able to pay spousal support, the parties may want to retain a life insurance policy.  However, due to the increased cost of life insurance as a senior, the parties may benefit from an alimony trust.  An alimony trust is when the payor spouse transfers investments or other assets that generate income into an alimony trust for the recipient spouse or beneficiary.  It may create more protection without the high cost of life insurance. 

 

It seems as society becomes increasingly egalitarian—the pitfalls of life (including divorce) will affect different populations more equally than in the past.  Here are some key issues for couples divorcing as seniors to think about:

  • Long term care planning
  • Estate planning
  • Alternatives to traditional spousal support
  • Health insurance coverage
  • Social security benefits
  • Longer term marriage issues

 

If you would like a free consultation with regard to your family law issue, please give us a call at (805) 482-1170.

 

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California’s Legal Document Assistant Problem (I can’t give you legal advice, but….)

Forms picture blogpost on LDA

Many times, clients come to our office and we get to “clean up messes.”  In some of these cases–the damages already done to the client’s legal position are irreparable.  For many of these parties it would have also been cheaper to have an attorney from the start–instead of trying to fix the harm done while unrepresented.  Many of these parties used Legal Document Assistants to start their case.

 

What we do:

It’s not that every family law case in California demands an attorney (yes, I just said that).  I frequently instruct potential clients during their free initial consultation that they really could do this on their own if they want, I give them some free advice, I print them out a few forms, and I send them on their way.

 

Forms are free:

The thing is that much of family law work is done on forms which are provided by the state.  Many of the forms also have corresponding “INFO” pages that explain how to use them and how to fill them out.  These forms are published by the California Judicial Council and freely available online.  You, as a taxpayer, are paying the State of California to develop and maintain these forms.  They are free.

 

California Superior Court Self-Help Centers:

Every California State Superior Court has self-help centers.  At these centers you can receive these free forms and get help filling out those forms.  Unfortunately, the self-help centers don’t provide a high level of service.  You work on their schedule, they only help you with certain issues, and they can’t provide legal advice.

 

The California Legal Document Assistant (What they do):

California has something called “Legal Document Assistants” or LDAs.  These LDAs are able to provide forms (the forms we just discussed that are found free online, and help you fill them out, as long as they don’t give legal advice.  So, they provide you a form that is free and readily available online, they help you complete it, and they charge you for it. Under Bus. & Prof. Code § 6400 (the relevant portions of which are at the bottom of this post) states that “A legal document assistant may not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies.”  Right.  In reality, these LDAs give legal advice and explanations all the time.  They simply couch advice with language like, “I can’t give you legal advice, but…” and then they proceed to give legal advice.  There is a reason why LDAs are not allowed to give legal advice–they weren’t trained to practice law.

So, what is the LDA supposedly able to do?  They are supposed to be, “Completing legal documents in a ministerial manner.”  What the heck does that mean?  It means they are simply an “instrument” and should have “no personal discretion or judgment in its performance.”  They simply fill it out as you tell them.

So, LDAs charge you for forms (which are available for free online and at the courthouse), they also charge you for filling them out (which the self-help center does for free and you can figure out), and they can’t provide legal advice or explanations.

 

Beyond the Form:

Does your family law case require action beyond these California Judicial Council forms?  Maybe.  Ask yourself some of these questions:

  • Do you need to make your spouse come to the hearing without a subpoena–and/or make them bring documents with them to the hearing?
  • Do you need to demand specific answers to questions?
  • Do you need to demand they complete their preliminary or final declaration of disclosure?
  • Do you need to write a points and authorities and when is one needed anyway?
  • Who can help me figure out what questions to ask at the hearing, which questions are objectionable, and what I can object to?
  • Where do I find a marital settlement agreement and what should it have in it?

Many times family law attorneys prepare documents beyond the free forms published by the California Judicial Council.  Although LDAs may have some of these forms laying around, they are not allowed to suggest them, explain them, or advise you on when to use them.  It’s not every case that requires them–but sometimes they can make a big difference in the outcome.

Free Consultation:

Your first appointment with an LDA is going to cost you.  We give free consultations and help you figure out if you need us or not.  Give us a call at (805) 482-1170.

 

 

Bus. & Prof. Code § 6400

(g) A legal document assistant may not provide any kind of advice,

explanation, opinion, or recommendation to a consumer about possible

legal rights, remedies, defenses, options, selection of forms, or

strategies. A legal document assistant shall complete documents only

in the manner prescribed by paragraph (1) of subdivision (d).

(2)(d)(1) Completing legal documents in a ministerial manner, selected by a person

who is representing himself or herself in a legal matter, by typing or otherwise completing

the documents at the person’s specific direction.

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Enjoying the holidays as divorced parents (maybe)

A recent article from the Washington Times explores ways in which divorced families can survive the holidays.  The article does correctly point out that, like in other areas of life, a little advanced planning can go a long way.

Here are my own thoughts on working your way through the holidays as a divorced (or divorcing) parent:

  • If you have a court order, read it, follow it, and keep a copy with you.
  • Consistently communicate with the other parent using the same means.  Don’t call sometimes, text sometimes, and email sometimes.  Pick one method of communication and stick with it.
  • Use a shared calendar online.  There are an incredible number of free calendaring services online.  Create a Google, Hotmail (Windows Live), or Yahoo calendar and share it between parents.  It’s free.  It works.
  • Do not use the kids as messengers.  For example: “When you see your dad tell him____.”  If the end of that sentence is anything other than “Merry Christmas,” then send him/her the message yourself.
  • Benefit from consistency.  If your ex makes the kids go to bed at 9:00pm, don’t be their hero and allow them to stay up until 2:00am.  Children benefit from consistent rules and expectations.
  • Have an outlet and schedule it ahead of time.  Work into the holiday visitation schedule a healthy way to vent and channel your frustration with your ex.  For some people that means exercise or a round of golf.  For others that means a chat with friends at a local pub.  Vent, just not directly on your ex and not around your kids.
  • Use “I” statements.  I know, it’s silly, but it’s true.  Don’t start any sentence to your ex with the word, “You.”  For instance, instead of “You always do stuff like this last minute,”  say something like, “I feel like these last minute changes are not helpful or fair.”  Focusing your feelings internally prevents the other person from feeling threatened and from becoming defensive–shutting down altogether.

 

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Can I pay less child support when my ex won’t let me see the kids?

Clients sometimes ask—since my ex is withholding our kids from visiting with me, can I stop paying child support?  I understand the logical inference the client is drawing here.  My ex is acting wrongfully, I am not seeing my kids, therefore the ex should be punished and they should support the kids since they have them 100% of the time.  Wrong.

To understand why this is so, it is important to understand what is somewhat of a legal fiction.  That is that child support is paid for the benefit of the children, is made to counteract disparities in income between parents so that children can be provided for but also experience a similar standard of living in both households, and is made in accordance with custodial timeshare.  The more custody you have, the less you pay.  The less custody you have, the more you pay.  If you follow that logic, then if the other parent withholds the children from visitation—the child support obligation should actually be increased rather than decreased.

Like most of family law, this entire issue is resolved by statute.  Under the California Family Code, one parent’s interference with the visitation rights of the other does not affect the duty of support.  See Family Code §§ 3556, 4845 (b).  Even deliberate sabotage of visitation rights does not justify withholding payment of support, although it may provide grounds for a contempt action, for modification of custody, or for other sanctions. Cooper v. O’Rourke (1995) 32 Cal.App.4th 243, 245 (Quoting Moffat v. Moffat (1980) 27 Cal.3d 645, 651-652).

So, if you ex is preventing you from exercising your custody rights, you can file a motion for contempt, attempt to modify custody, or request sanctions—but don’t expect your child support to be any different.

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