You may be receiving child support and you don’t think it’s enough. You may be paying spousal support but think your ex is actually making more now than at the time of the divorce. Before filing a motion to modify support, wouldn’t it be great to know how much money they are making—so you don’t waste your time or money? But, they will never give you their paystubs or tax returns, right?
California Family Code § 3664 authorizes requests for current income and expense declarations—after the judgment! It is suggested that these requests only be made once a year at most. The form created to facilitate this request is judicial council form FL-396. So, what happens if they ignore your request? Guess, what—there’s another form for that (don’t you love family law). If your Ex doesn’t cooperate, 35 days later you can file judicial council form FL-397 directly with their employer. The problem? There’s no real teeth to the FL-397, in that if the employer refuses to cooperate there is not much that you can do about it.
If your Ex refuses to comply with your FL-396 request and the employer fails to cooperate as well, you are setting yourself up for a great argument that the court should make your Ex pay your attorney fees—due to their lack of cooperation. However, you will have to file a request to modify support. Once the proceedings begin, if they again fail to submit complete income and expense disclosure documents, you can also ask for sanctions under California Family Code § 3667.
You may read this in horror. Is there no privacy? Any party paying or receiving support has a right to demand the other party’s tax information as long as that support order in place!
As Retired California Supreme Court Chief Justice Ronald M. George said, “Our court system increasingly has recognized that a judicial decree is far from the final word in a divorce; parental and fiscal responsibilities may last for many years.” Far from the final word is right.
This case comes out of Michigan where someone’s oak tree was damaged by an errant car. Unfortunately the Plaintiff lost for a few different procedural reasons. The judge lamented with this opinion:
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.
This conversation from When Harry Met Sally (1989) says a lot about divorce:
Harry Burns: Right now everything is great, everyone is happy, everyone is in love and that is wonderful. But you gotta know that sooner or later you’re gonna be screaming at each other about who’s gonna get this dish. This eight dollar dish will cost you a thousand dollars in phone calls to the legal firm of That’s Mine, This Is Yours.
Harry Burns: Please, Jess, Marie. Do me a favor, for your own good, put your name in your books right now before they get mixed up and you won’t know whose is whose. ‘Cause someday, believe it or not, you’ll go 15 rounds over who’s gonna get this coffee table. This stupid, wagon wheel, Roy Rogers, garage sale COFFEE TABLE.
Jess: I thought you liked it?
Harry Burns: I was being nice.
Divorce is a declaration of independence with only two signers.
Gerald F. Lieberman
“One in two lawyers is always wrong–and they’re rich. What they can’t be is incompetent. So don’t stress if you are wrong.”
Professor Peter Jan Honisberg, University of San Francisco School of Law
Lawyers far too often lose sight of what their practice is intended to be. Justice Frankfurter once described what a lawyer’s role should be and what that requires.
It is a fair characterization of the lawyer’s responsibility in our society that he stands ‘as a shield,’ to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’
–Schware v. Board of Bar Exam. of State of N.M. (1957) 353 U.S. 232, 247 (Concurrence)
Judge Learned Hand had a way with words. (Yes, that is his real name.)
The following is an excerpt from Griswold:
“For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.”