Donald F. Conviser, CFLS, of Warner Center Law Offices in Woodland Hills, serving Divorce and Family Law clients in Los Angeles and Ventura County for over 35 years, offering a fee confidential consultation with people with Family Law or Divorce questions or issues (818) 880-8990, herein addresses proposed arguments that might be effective to diminish the consequences of a JACKSON or TRAINOTTI claim. Those two cases held in effect that where custody of a child changes, the former custodial parent's claim for child support arrearages that accrued after the change of custody may, in an exercise of the Court's equitable discretion, be deemed discharged via the new custodial parent having supported the child at his/her home.
I propose that the Court should consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages, as hereinafter addressed.
Marriage of JACKSON (1975) 51 Cal.App.3d 363 is a case addressing, among other things, a writ of execution levied by Gail on Thomas's bank account for child support arrearages due to Gail (the initial custodial parent) for a period of time after the parties' minor daughter had, with Gail's consent, commenced residence with Thomas. Thomas moved for an order recalling and quashing the writ of execution, and the trial court denied his motion, declaring that his motion was an improper attempt to retroactively modify child support. On Thomas's appeal, the appellate court held the trial court's ruling to be based on erroneous reasoning that it had no discretion to grant the motion, and remanded the case with instructions for the trial court to reconsider the matter, stating:
"While it is true that an order for child support may not be retroactively modified and that accrued arrearages are treated like a judgment for money, it must be remembered that such orders are an exercise of the court's equitable power and are designed to compel satisfaction of the child support obligation apart from the marriage status. The obligation is to the child and not to the mother. ... while a court may not retroactively modify accrued payments, it could deny enforcement of such a judgment on equitable grounds. Hence, contrary to the trial court's reasoning, quashing the writ of execution is separate and distinct from retroactive modification of the original order. ... the trial court has, under (such) circumstances, the right to recall the execution and allow the enforcement of the judgment, only to the extent of the husband's equitable obligation to pay. ... the trial court now has discretion to determine in each case whether execution is an appropriate remedy for enforcing its order. ... Once the writ of execution has issued, however, the judgment debtor must show why the writ should be quashed. One reason which the court could consider in exercising its equitable discretion would, of course, be that the debtor has satisfied the obligation."
The JACKSON Court concluded that the trial court could have been well within its discretion in recalling and quashing the writ of execution or permitting only partial enforcement on the basis that Thomas had directly discharged his obligation or on the basis of equitable considerations.
In Marriage of Trainotti (1989) 213 Cal.App.3d 1072, Roberta was awarded custody of the parties' minor son, but three years later, the parties agreed that Michael would assume custody of their son, and he did so. Subsequently, the parties submitted the issue of child support arrearage allegedly due Roberta for the period during which Michael had custody of their son. The trial court concluded that it had no jurisdiction to offset or discharge the accrued child support liability during the period the parties' child was residing with Michael. Michael appealed.
The appellate court found that the trial court's ruling was based on its restrictive reading of the modification retroactivity statute [which allows modification only retroactive to the date of filing of the OSC to modify]. It addressed the JACKSON case as a nearly identical case, summarized its holding noted above, and addressed a subsequent OKUM case in which the appellate court held that a trial court possesses the discretion to permit only partial enforcement or to quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child.
The TRAINOTTI court held that the applicable statute provides the trial court with discretion to determine the appropriate remedy for enforcing the order regardless of the procedural context in which the issue was raised. It stated that the trial court should have considered whether the debtor had satisfied or otherwise discharged the obligation imposed by the original order [citing JACKSON], and that such consideration does not violate the prohibition against retroactive modification of the support award. It held that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son, with the approval of Roberta, a home and support that was equal to or in excess of the court-ordered amount.
As noted above, I propose that the Court consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages in such a case.
Child support is based on the parties' respective incomes and ther respective custodial timeshares. In TRAINOTTI's holding that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son a home and support equal to or in excess of the court-ordered amount, the Court, and perhaps Robert's attorney, ignored the possiblity that, by virtue of the parties' respective incomes and custodial timeshares, some guideline child support [albeit in an amount lower than the former order] might still have been payable by Michael to Roberta for the period after Michael received his son's physical custody.
In that event, shouldn't the Court have calculated a new, reduced amount of child support that would have been due from Michael to Roberta and enforced Michael's child support obligation to that extent, instead of just comparing the amount of Michael's child support obligation to [the value of] his furnishing a home and support to his son? Or would that be considered an impermissible retroactive modification of child support? I would think that the court, in that event, would have discretion to partially enforce the child support arrearage in an exercise of its equitable powers, instead of turning the arrearage switch "off" upon hearing that de facto custody had changed.
What if the parties had 50/50 custody, and thereafter the father received full custody of their child pursuant to agreement with the mother exercising some visitation [for example, 20%]. In that event, the father's initial obligation had been to provide 50% of the childrens' living expenses during the 50% of the time when the children were living with him, and payment of a certain amount to the mother as child support.
After custody changed to father, he gets only 30% more custody. A guideline calculation of child support would be appropriate under those circumstances, based on the parties' respective incomes and custodial timeshare, to determine how much support the father would still owe to the mother, so that instead of fully discharging the father's obligation for child support arrearages to the mother in toto, the Court would discharge only part of that obligation.
What if father had historical unclean hands in the matter? What if the mother were mentally impaired and the father had manipulated her into not dealing with the attorney her family had hired to represent her in the divorce and had taken advantage of her by "negotiating" an unfair Marital Settlement Agreement with the mentally impaired mother, who had no clue what her rights were? What if the father had cheated the mentally impaired mother out of fair child and spousal support by understating his income and overstating her income? What if the father had been ordered to pay for health insurance for the mentally-impaired mother for two years, but failed to pay? What if the reason for the change of custody was something that the father had unfairly done to the mother, rendering her emotionally distressed?
Would the court look beyond just child custody and child support in order to fashion an equitable remedy? JACKSON does address equitable considerations. Is "unclean hands" limited to a tunnel view by the court of the immediate issues, or can the court look at the whole picture of historical bad faith unconscionable conduct?
In Keith G. v. Suzanne H (1998) 62 Cal.App. 853, the appellate Court stated: "Under California law, the trial court has discretion to determine the appropriate means of enforcing a judgment for child support. In exercising that discretion, the trial court can, and should take the equities of the situation into account." That opinion included a cite: "These are some of the dirtiest hands we have seen. He who seeks equity must do equity." The appellate court stated: "After weighing the equities, the trial court wisely fashioned a commonsense remedy that does not harm B. and does not reward father for his recalcitrance. The overall policy of the law is fairness."
The Family Law court sits in equity, and should exercise its discretion to arrive at a fair decision after weighing all the equitable considerations.
Saturday, May 2, 2009
THE COURT CAN IMPUTE EARNING CAPACITY TO EITHER PARENT
Donald F. Conviser, a Woodland Hills Certified Family Law Specialist, owner of Warner Center Law Office, with over 35 years' experience aggressively and effectively representing clients in Divorce and Family Law cases in the Courts of Los Angeles and Ventura county, offering a free confidential consultation at 818-880-8990, publishes another blog: THE COURT CAN IMPUTE EARNING CAPACITY TO EITHER PARENT, to address situations in which a Custodial or Noncustodial parent is not contributing, or not adequately contributing, to the support of his/her child as a result of unemployment or underemployment.
In computing child support obligations under the statewide uniform guidelines, the trial court has discretion to impute income to either parent based on that parent's "earning capacity." Family Code Section 4058(b).
It used to be the law that "earning capacity" was a 3-pronged test, composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience, and qualifications, (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment, and (3) an ability to work. Marriage of Regnery (1989) 214 Cal.App.3d 1367 required that those three prongs all be satisfied before the trial court may utilize a parent's earning capacity rather than actual income in computing child support.
The Philbin case [Regis's income fell one year through no fault of his own] tells us that the "willingness to work" prong of the 3-pronged test was addressed in a number of cases as: a deliberate attempt to avoid financial responsibilities by refusing to seek or accept gainful employment [Marriage of Pencovic], refusing to secure or take a job [Marriage of Weber, Marriage of Tomkins], a father deliberately not applying himself to his business [Marriage of Clark], a father intentionally depressing his income to an artificial low [Marriage of Elliott], or a father intentionally leaving his employment to go into another business [Marriage of Baron].
However, the "willingness to work" prong of the three prongs was eliminated in Marriage of Padilla (1995) 38 Cal.App4th 1212, which stated that Philbin's comments regarding bad faith were dicta [not citable authority - because those comments were not necessary to the court's judgment] because the Philbin court hadn't addressed the issue - instead it says that Phibin considered whether a child support order may be premised on a parent's former income level when through no fault of the parent, that income is no longer available. Padilla tells us that Philbin didn't hold, even as dicta, that bad faith is a condition precedent to the imputation of income. Padilla tells us that, simply stated, a parent cannot be held to an unavailable income level, BUT a parent may have income imputed when he/she fails to take advantage of an employment opportunity.
Padilla states: "Because childrens' interests are a top priority, and payment of appropriate support is a parent's primary obligation [Family Code section 4053(a)(d)], a child support obligation must be taken into account whenever an obligor wishes to pursue a different lifestyle or endeavor. Child support is an overhead which must be paid before any other expenses. A payor does not have the right to divest himself/herself of his/her earning ability at the expense of the minor children."
Fast forward to Marriage of LaBASS and MUNSIE (1997) 56 Cal.App.4th 1331: which shows us that income can be imputed to the Custodial parent, among other lessons that case teaches.
Catherine Munsie decided to work part time teaching at a local college while pursuing another postgraduate degree and using time that she could have been working at a full time job to spend with the parties' children. Barry LaBASS filed an Order to Show Cause to reduce his child support obligation, seeking to impute to Catherine the salary of a full-time teacher rather than her part-time earnings.
Barry submitted L.A. Times classified ads to show that full-time teaching employment was available. The trial court allowed those ads into evidence over a hearsay objection [that they weren't admissible to prove the truth of the matter asserted in them], holding that they were admissible for a non-hearsay purpose: to show that "offers to bargain" existed. An important lesson to attorneys - if you can't find a hearsay exception, look for non-hearsay purposes for what appears to be inadmissible hearsay.
The LaBASS court cited Padilla [a parent does not have the right to divest himself/herself of his/her earning ability at the expense of minor children]. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income - otherwise one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the fully employed parent [citing Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384], stating that while Catherine may choose to pursue her education and spend more time with her children, she may not use this choice to avoid her obligation to contribute financially to their support, unless the court finds that such decision is in the best interests of the minor children.
Marriage of Moseley (2008) 165 Cal.App.4th 1375 imputed income to another custodial mother. Dawn, the stay-at-home mother of the parties 5 children, was a licensed attorney, former law review editor at her law school, had started her legal career at Latham & Watkins, but stopped practicing law and let her license become inactive to devote her time to care for her 5 children, stating that doing so was consistent with the parties' faith as devout Mormons. Paul's income changed with a job change, and he filed an Order to Show Cause to modify his support obligation. In this article, I'll deal only with the imputation of income aspects of this case [which had other interesting aspects not relevant to this article].
Paul appealed the trial court's denial of his OSC. The appellate court reversed, agreeing with Paul that LaBASS and MUNSIE offers important guidance in this case, stating: "As that case makes clear, each parent should pay for the support of the children according to his or her abiltiy, insmuch as both parents are equally responsible for the support of their children", and repeated what I cited hereinabove from LaBASS [starting with "When a parent decides not to seek..."]."
The appellate court commented that it is difficult to disagree with the suggestion that Dawn is likely employable as an entry level attorney and that substantial salaries are generally available to entry level attorneys with Dawn's academic standing; it is even more difficult to disagree with the assertion that a licensed attorney with some amount of experience at a law firm the stature of Latham & Wakins would be unable to find employment as a paralegal.
The early imputation of income cases appeared to target Noncustodial Dads. LaBASS and MUNSIE and MOSLEY demonstrate that the law is not sexist, and not biased against the Noncustodial parent. Instead, an unemployed or underemployed parent may have income imputed to him/her if the other party demonstrates his ability to earn and opportunity to earn, and classified ads (and/or the testimony of a vocational consultant) are admissible to prove the opportunity to earn element.
In computing child support obligations under the statewide uniform guidelines, the trial court has discretion to impute income to either parent based on that parent's "earning capacity." Family Code Section 4058(b).
It used to be the law that "earning capacity" was a 3-pronged test, composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience, and qualifications, (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment, and (3) an ability to work. Marriage of Regnery (1989) 214 Cal.App.3d 1367 required that those three prongs all be satisfied before the trial court may utilize a parent's earning capacity rather than actual income in computing child support.
The Philbin case [Regis's income fell one year through no fault of his own] tells us that the "willingness to work" prong of the 3-pronged test was addressed in a number of cases as: a deliberate attempt to avoid financial responsibilities by refusing to seek or accept gainful employment [Marriage of Pencovic], refusing to secure or take a job [Marriage of Weber, Marriage of Tomkins], a father deliberately not applying himself to his business [Marriage of Clark], a father intentionally depressing his income to an artificial low [Marriage of Elliott], or a father intentionally leaving his employment to go into another business [Marriage of Baron].
However, the "willingness to work" prong of the three prongs was eliminated in Marriage of Padilla (1995) 38 Cal.App4th 1212, which stated that Philbin's comments regarding bad faith were dicta [not citable authority - because those comments were not necessary to the court's judgment] because the Philbin court hadn't addressed the issue - instead it says that Phibin considered whether a child support order may be premised on a parent's former income level when through no fault of the parent, that income is no longer available. Padilla tells us that Philbin didn't hold, even as dicta, that bad faith is a condition precedent to the imputation of income. Padilla tells us that, simply stated, a parent cannot be held to an unavailable income level, BUT a parent may have income imputed when he/she fails to take advantage of an employment opportunity.
Padilla states: "Because childrens' interests are a top priority, and payment of appropriate support is a parent's primary obligation [Family Code section 4053(a)(d)], a child support obligation must be taken into account whenever an obligor wishes to pursue a different lifestyle or endeavor. Child support is an overhead which must be paid before any other expenses. A payor does not have the right to divest himself/herself of his/her earning ability at the expense of the minor children."
Fast forward to Marriage of LaBASS and MUNSIE (1997) 56 Cal.App.4th 1331: which shows us that income can be imputed to the Custodial parent, among other lessons that case teaches.
Catherine Munsie decided to work part time teaching at a local college while pursuing another postgraduate degree and using time that she could have been working at a full time job to spend with the parties' children. Barry LaBASS filed an Order to Show Cause to reduce his child support obligation, seeking to impute to Catherine the salary of a full-time teacher rather than her part-time earnings.
Barry submitted L.A. Times classified ads to show that full-time teaching employment was available. The trial court allowed those ads into evidence over a hearsay objection [that they weren't admissible to prove the truth of the matter asserted in them], holding that they were admissible for a non-hearsay purpose: to show that "offers to bargain" existed. An important lesson to attorneys - if you can't find a hearsay exception, look for non-hearsay purposes for what appears to be inadmissible hearsay.
The LaBASS court cited Padilla [a parent does not have the right to divest himself/herself of his/her earning ability at the expense of minor children]. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income - otherwise one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the fully employed parent [citing Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384], stating that while Catherine may choose to pursue her education and spend more time with her children, she may not use this choice to avoid her obligation to contribute financially to their support, unless the court finds that such decision is in the best interests of the minor children.
Marriage of Moseley (2008) 165 Cal.App.4th 1375 imputed income to another custodial mother. Dawn, the stay-at-home mother of the parties 5 children, was a licensed attorney, former law review editor at her law school, had started her legal career at Latham & Watkins, but stopped practicing law and let her license become inactive to devote her time to care for her 5 children, stating that doing so was consistent with the parties' faith as devout Mormons. Paul's income changed with a job change, and he filed an Order to Show Cause to modify his support obligation. In this article, I'll deal only with the imputation of income aspects of this case [which had other interesting aspects not relevant to this article].
Paul appealed the trial court's denial of his OSC. The appellate court reversed, agreeing with Paul that LaBASS and MUNSIE offers important guidance in this case, stating: "As that case makes clear, each parent should pay for the support of the children according to his or her abiltiy, insmuch as both parents are equally responsible for the support of their children", and repeated what I cited hereinabove from LaBASS [starting with "When a parent decides not to seek..."]."
The appellate court commented that it is difficult to disagree with the suggestion that Dawn is likely employable as an entry level attorney and that substantial salaries are generally available to entry level attorneys with Dawn's academic standing; it is even more difficult to disagree with the assertion that a licensed attorney with some amount of experience at a law firm the stature of Latham & Wakins would be unable to find employment as a paralegal.
The early imputation of income cases appeared to target Noncustodial Dads. LaBASS and MUNSIE and MOSLEY demonstrate that the law is not sexist, and not biased against the Noncustodial parent. Instead, an unemployed or underemployed parent may have income imputed to him/her if the other party demonstrates his ability to earn and opportunity to earn, and classified ads (and/or the testimony of a vocational consultant) are admissible to prove the opportunity to earn element.
Thursday, April 30, 2009
MARRIAGE OF FELDMAN: THE PENALTY FOR NONDISCLOSURE
Donald F. Conviser, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, serving family law and divorce clients in the Courts of Los Angeles and Ventura County, 818-880-8990, writes:
Divorces used to be sporting events where, if you could find the asset, you get your share; if you could find the income, you get your spousal support and/or child support. Now, there are significant penalties for nondisclosure, as Aaron Feldman so sorely learned. Read on ...
In 1993, the legislature, in its wisdom, passed a bill now codified as Family Code Section 2100, et seq., declaring, among other things:
1. Sound public policy favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.
2. In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for divorce or separation, regardless of characterization as separate or community, together with a disclosure of all income and expenses of the parties.
3. Each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these isues, each party will have a full and complete knowledge of the relevant underlying facts.
Some parties going through a divorce may be tempted to conceal income or assets. Those parties are penny wise and pound foolish. This article demonstrates why parties should resist the temptation and disclose, and what could happen to a party who conceals.
Marriage of FELDMAN (2007) 153 Cal.App.4th 1470 provides good reasons [390,000 of them] to resist that temptation. Aaron failed to disclose several assets and financial transactions in his Declarations of Disclosure; Elena learned of them through subsequent discovery, including her stumbling on Aaron's acquisition of a home through a deposition of an employee of one of the community businesses, on a 401K plan of Aaron at his deposition, and on theretofore undisclosed businesses through subsequently produced organizational charts.
During the divorce proceedings, Elena filed an application for an order for (1) imposition of monetary sanctions against Aaron for a violation of his fiduciary duty to make financial disclosures to her during the proceedings, and 2) imposition of monetary sanctions requiring Aaron to pay her attorney's fees, based on Family Code sections 1101(g), 2107(c), and 271(a).
The Appellate Court affirmed the trial Court's granting of Elena's Motion awarding Elena $250,000 in sanctions for breach of fiducary duty and $140,000 in attorney's fees.
The Appellate Court addressed the fiduciary duties that parties owe to each other as codified in Family Code section 721(b), stating that their confidential relationship imposes a duty of highest good faith and fair dealing, and that neither shall take unfair advantage of the other. The Court also addressed Family Code section 1100(e), requiring that such duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of assets in which the community has or may have an interest and debts for which the community may be liable, until such time as the assets have been divided by the parties or the Court.
Of significance in the Feldman opinion is that it states that no injury to the other party is required for the trial court to impose sanctions. Family Code section 2107(c) mandates the imposition of sanctions against the party who fails to comply with the disclosure requirements in an amount sufficient to deter repetition of the conduct or comparable conduct, including attorney's fees. That statute does not require that before seeking sanctions for nondisclosure that a party seek further disclosure or bring a motion to compel further responses or preclude evidence. If a party's disclosures fail to meet the statutory requirements for full, accurate and complete disclosure, Feldman shows us the penalty for the risk that the party is taking.
Family Code section 271(a) authorizes the imposition of monetary sanctions against a party to pay attorney's fees and costs when the conduct of the party or his/her attorney frustrates the policy of the law to promote settlement and reduce the cost of litigation by encouraging cooperation.
The lesson: Disclose, fully, as required. Don't conceal; the penalty is designed to deter concealment.
Divorces used to be sporting events where, if you could find the asset, you get your share; if you could find the income, you get your spousal support and/or child support. Now, there are significant penalties for nondisclosure, as Aaron Feldman so sorely learned. Read on ...
In 1993, the legislature, in its wisdom, passed a bill now codified as Family Code Section 2100, et seq., declaring, among other things:
1. Sound public policy favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.
2. In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for divorce or separation, regardless of characterization as separate or community, together with a disclosure of all income and expenses of the parties.
3. Each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these isues, each party will have a full and complete knowledge of the relevant underlying facts.
Some parties going through a divorce may be tempted to conceal income or assets. Those parties are penny wise and pound foolish. This article demonstrates why parties should resist the temptation and disclose, and what could happen to a party who conceals.
Marriage of FELDMAN (2007) 153 Cal.App.4th 1470 provides good reasons [390,000 of them] to resist that temptation. Aaron failed to disclose several assets and financial transactions in his Declarations of Disclosure; Elena learned of them through subsequent discovery, including her stumbling on Aaron's acquisition of a home through a deposition of an employee of one of the community businesses, on a 401K plan of Aaron at his deposition, and on theretofore undisclosed businesses through subsequently produced organizational charts.
During the divorce proceedings, Elena filed an application for an order for (1) imposition of monetary sanctions against Aaron for a violation of his fiduciary duty to make financial disclosures to her during the proceedings, and 2) imposition of monetary sanctions requiring Aaron to pay her attorney's fees, based on Family Code sections 1101(g), 2107(c), and 271(a).
The Appellate Court affirmed the trial Court's granting of Elena's Motion awarding Elena $250,000 in sanctions for breach of fiducary duty and $140,000 in attorney's fees.
The Appellate Court addressed the fiduciary duties that parties owe to each other as codified in Family Code section 721(b), stating that their confidential relationship imposes a duty of highest good faith and fair dealing, and that neither shall take unfair advantage of the other. The Court also addressed Family Code section 1100(e), requiring that such duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of assets in which the community has or may have an interest and debts for which the community may be liable, until such time as the assets have been divided by the parties or the Court.
Of significance in the Feldman opinion is that it states that no injury to the other party is required for the trial court to impose sanctions. Family Code section 2107(c) mandates the imposition of sanctions against the party who fails to comply with the disclosure requirements in an amount sufficient to deter repetition of the conduct or comparable conduct, including attorney's fees. That statute does not require that before seeking sanctions for nondisclosure that a party seek further disclosure or bring a motion to compel further responses or preclude evidence. If a party's disclosures fail to meet the statutory requirements for full, accurate and complete disclosure, Feldman shows us the penalty for the risk that the party is taking.
Family Code section 271(a) authorizes the imposition of monetary sanctions against a party to pay attorney's fees and costs when the conduct of the party or his/her attorney frustrates the policy of the law to promote settlement and reduce the cost of litigation by encouraging cooperation.
The lesson: Disclose, fully, as required. Don't conceal; the penalty is designed to deter concealment.
Wednesday, April 29, 2009
DEATH BEFORE JUDGMENT
Donald F. Conviser, a Certified Family Law Specialist and owner of Warner Canyon Law Offices in Woodland Hills CA, in the San Fernando Valley, aggressively and effectively representing parties in Divorce [Dissolution of Marriage] and other Family Law proceedings in Los Angeles and Ventura Counties for over 35 years, offering a free, confidential consultation regarding your Divorce or Family Law issues - call him at 818/880-8990, brings you another informative blog, addressing DEATH BEFORE JUDGMENT, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce.
What happens if a party to a Divorce dies during the proceedings?
If a Bifurcated Status Dissolution had not been entered [i.e., if the parties were still married when a spouse died], the death of a party terminates the dissolution proceeding. The surviving party obtains all rights to custody of the parties' children forthwith on the death of the custodial parent.
If a Bifurcated Status Dissolution had been entered, the Court retains jurisdiction to resolve the reserved issues, including issues preserved by the Bifurcation Order, and the deceased spouse's estate can proceed in the place of the deceased spouse to divide the community property and enforce the bifurcation orders.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in the Superior Courts of Los Angeles and Ventura Counties since 1972 in all areas of family law and divorce, including Bifurcation of Marital Status, property division, prenuptial agreements, premarital agreements, divorce, paternity, nonmarital dissolution, stepparent adoption, child support, spousal support, child custody, and visitation. If you have a question regarding any aspect of divorce or family law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
What happens if a party to a Divorce dies during the proceedings?
If a Bifurcated Status Dissolution had not been entered [i.e., if the parties were still married when a spouse died], the death of a party terminates the dissolution proceeding. The surviving party obtains all rights to custody of the parties' children forthwith on the death of the custodial parent.
If a Bifurcated Status Dissolution had been entered, the Court retains jurisdiction to resolve the reserved issues, including issues preserved by the Bifurcation Order, and the deceased spouse's estate can proceed in the place of the deceased spouse to divide the community property and enforce the bifurcation orders.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in the Superior Courts of Los Angeles and Ventura Counties since 1972 in all areas of family law and divorce, including Bifurcation of Marital Status, property division, prenuptial agreements, premarital agreements, divorce, paternity, nonmarital dissolution, stepparent adoption, child support, spousal support, child custody, and visitation. If you have a question regarding any aspect of divorce or family law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
Tuesday, April 28, 2009
THE POUND OF FLESH REQUIRED FOR BIFURCATION
Certified Family Law Specialist DONALD F. CONVSER 818/880-8990, an aggressive and effective family law and divorce attorney representing clients in Los Angeles County and Ventura County for over 35 years, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, offering a free confidential consultation regarding your divorce and family law issues, brings you another informative blog addressing THE POUND OF FLESH REQUIRED FOR BIFURCATION, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce, and how he deals with challenges presented to him.
Near the end of my last blog, I stated: Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party. In my April 26, 2009 blog, I warned readers that before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status as well as conditions which the Court may impose on the party seeking Bifurcation.
The pound of flesh that the bifurcator has to pay for the bifurcation could include an order requiring him to pay for health insurance for his spouse (equivalent to the pre-bifurcation health insurance) for the period following the bifurcation until the reserved issues (the balance of the issues in the divorce case) are fully resolved, and if that health insurance becomes no longer available (COBRA coverage is only available for 3 years post-dissolution of marital status, at a significant price, and there may well be other reasons that health insurance may become no longer available), if the bifurcator cannot replace that coverage with equivalent coverage (such as where the former spouse has a pre-existing condition that may preclude insurability), the bifurcator becomes the health insurer of his former spouse, i.e., he pays all of her medical, hospital, psychiatric, prescription, and other health care bills.
If that isn't penalty enough, if the bifurcator was covered on his former spouse's health insurance available through her employment, guess what? Upon the bifurcated status dissolution that he hungrily sought, he no longer qualifies for such coverage. What's good for the goose is bad for the gander!
Other penalties that the bifurcator may suffer during the period after the Bifurcated Status Dissolution and the resolution of the balance of the issues in the case (the Judgment on Reserved Issues... which the former spouse could delay through discovery issues, continuances, etc., for years, and note - once there is a Bifurcated Status Dissolution, the 5-year Dismissal Statute for delay in prosecution no longer applies by virtue of Code of Civil Procedure Section 583.161, so the case could drag on, and on, and on...) include orders:
1. That the bifurcator must indemnify and hold his former spouse harmless from any taxes, reassessments, interest and penalties payable by his former spouse in connection with the community estate that would not have been payable if the parties were still married at the time the division of property was made;
2. That the bifurcator must maintain all existing health coverage for the other party and minor children or replace it with equivalent coverage or become their health insurer, as above noted;
3. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other party's right to a probate homestead in which that party resides at the time the severance is granted;
4. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of rights to a probate family allowance as the surviving spouse;
5. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of retirement, survivor, or deferred compensation benefits or election/option rights under any pension or similar plan to the extent the other party would have been entitled to those benefits or elections or options as the surviving spouse of the bifurcator;
6. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the bifurcator [10 years of marriage is the magic number, after which a surviving spouse has the option/election to get derivative survivor social security benefits];
7. That the bifurcator maintain a beneficiary designation for his former spouse for nonprobate transfer assets;
8. That 1/2 or even all of the community interest in an IRA be assigned and transferred to the former spouse to preserve her ability to defer the distribution of the IRA on her death;
9. That upon a showing that circumstances exist that would adversely affect a party's community property rights if the other party died before the division and distribution and payment of community property interests, that the Court may order a specific security interest
.....
[such as an order for an "undertaking" (bond); a QDRO from the securing party's share of a retirement plan; an order for the creation of a Trust; an order for other arrangements to be made for security if the bifurcator died before Judgment on Reserved Issues is entered; and/or an interim order requiring the bifurcator to pay and post security for payment of any survivor benefit that would have been payable on the death of the bifurcator had he died married to the former spouse] designed to reduce or eliminate the possibility that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. If you can chew through that, you can taste the bitter pill; and ...
10. That the Court may impose any other condition that it determines is just and equitable. If you missed it, the kitchen sink is included!
And consider, for that heavy pound of flesh that the bifurcator may have to pay, he loses the benefits that he had that are preserved under Family Code Section 2337 for the former spouse.
I'll give thought to other losses that the bifurcator may stand to suffer, because I'm sure that the list above doesn't include all the bifurcation penalties (including loss of benefits as a military spouse... there's another penalty) - but: once the bifurcator gets a Bifurcated Status Dissolution, he may "feel divorced", he may "feel better", he may remarry, and he may file his income taxes as a single person.
So the proposed bifurcator should consider what he gets for what he has to pay, and he should carefully decide, with the assistance of a competent Divorce and Family Law Attorney, whether Bifurcation of Marital Status is worth the pound of flesh.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in Los Angeles and Ventura Counties for over 35 years, before the Superior Courts in Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, Burbank, Glendale, Santa Monica, Torrance, Pasadena and Pomona, in matters including Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child support, spousal support, child custody, visitation, and all other areas of family and divorce law practice. If you have any question or concern regarding Bifurcation or any other aspect of family law or divorce law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
Near the end of my last blog, I stated: Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party. In my April 26, 2009 blog, I warned readers that before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status as well as conditions which the Court may impose on the party seeking Bifurcation.
The pound of flesh that the bifurcator has to pay for the bifurcation could include an order requiring him to pay for health insurance for his spouse (equivalent to the pre-bifurcation health insurance) for the period following the bifurcation until the reserved issues (the balance of the issues in the divorce case) are fully resolved, and if that health insurance becomes no longer available (COBRA coverage is only available for 3 years post-dissolution of marital status, at a significant price, and there may well be other reasons that health insurance may become no longer available), if the bifurcator cannot replace that coverage with equivalent coverage (such as where the former spouse has a pre-existing condition that may preclude insurability), the bifurcator becomes the health insurer of his former spouse, i.e., he pays all of her medical, hospital, psychiatric, prescription, and other health care bills.
If that isn't penalty enough, if the bifurcator was covered on his former spouse's health insurance available through her employment, guess what? Upon the bifurcated status dissolution that he hungrily sought, he no longer qualifies for such coverage. What's good for the goose is bad for the gander!
Other penalties that the bifurcator may suffer during the period after the Bifurcated Status Dissolution and the resolution of the balance of the issues in the case (the Judgment on Reserved Issues... which the former spouse could delay through discovery issues, continuances, etc., for years, and note - once there is a Bifurcated Status Dissolution, the 5-year Dismissal Statute for delay in prosecution no longer applies by virtue of Code of Civil Procedure Section 583.161, so the case could drag on, and on, and on...) include orders:
1. That the bifurcator must indemnify and hold his former spouse harmless from any taxes, reassessments, interest and penalties payable by his former spouse in connection with the community estate that would not have been payable if the parties were still married at the time the division of property was made;
2. That the bifurcator must maintain all existing health coverage for the other party and minor children or replace it with equivalent coverage or become their health insurer, as above noted;
3. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other party's right to a probate homestead in which that party resides at the time the severance is granted;
4. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of rights to a probate family allowance as the surviving spouse;
5. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of retirement, survivor, or deferred compensation benefits or election/option rights under any pension or similar plan to the extent the other party would have been entitled to those benefits or elections or options as the surviving spouse of the bifurcator;
6. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the bifurcator [10 years of marriage is the magic number, after which a surviving spouse has the option/election to get derivative survivor social security benefits];
7. That the bifurcator maintain a beneficiary designation for his former spouse for nonprobate transfer assets;
8. That 1/2 or even all of the community interest in an IRA be assigned and transferred to the former spouse to preserve her ability to defer the distribution of the IRA on her death;
9. That upon a showing that circumstances exist that would adversely affect a party's community property rights if the other party died before the division and distribution and payment of community property interests, that the Court may order a specific security interest
.....
[such as an order for an "undertaking" (bond); a QDRO from the securing party's share of a retirement plan; an order for the creation of a Trust; an order for other arrangements to be made for security if the bifurcator died before Judgment on Reserved Issues is entered; and/or an interim order requiring the bifurcator to pay and post security for payment of any survivor benefit that would have been payable on the death of the bifurcator had he died married to the former spouse] designed to reduce or eliminate the possibility that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. If you can chew through that, you can taste the bitter pill; and ...
10. That the Court may impose any other condition that it determines is just and equitable. If you missed it, the kitchen sink is included!
And consider, for that heavy pound of flesh that the bifurcator may have to pay, he loses the benefits that he had that are preserved under Family Code Section 2337 for the former spouse.
I'll give thought to other losses that the bifurcator may stand to suffer, because I'm sure that the list above doesn't include all the bifurcation penalties (including loss of benefits as a military spouse... there's another penalty) - but: once the bifurcator gets a Bifurcated Status Dissolution, he may "feel divorced", he may "feel better", he may remarry, and he may file his income taxes as a single person.
So the proposed bifurcator should consider what he gets for what he has to pay, and he should carefully decide, with the assistance of a competent Divorce and Family Law Attorney, whether Bifurcation of Marital Status is worth the pound of flesh.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in Los Angeles and Ventura Counties for over 35 years, before the Superior Courts in Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, Burbank, Glendale, Santa Monica, Torrance, Pasadena and Pomona, in matters including Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child support, spousal support, child custody, visitation, and all other areas of family and divorce law practice. If you have any question or concern regarding Bifurcation or any other aspect of family law or divorce law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
REASONS TO OPPOSE BIFURCATED STATUS DISSOLUTION
DONALD F. CONVISER, CFLS [Certified Family Law Specialist] 818/880-8990, an aggressive and effective divorce and family law attorney representing clients in Ventura and Los Angeles counties for over 35 years, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, offering a free confidential consultation regarding your divorce or family law issues, brings you another informative blog addressing a few REASONS TO OPPOSE BIFURCATED MARITAL STATUS DISSOLUTION, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce, and how he deals with challenges presented to him.
Speaking about challenges, you might note the time I posted this blog - I prepare my blogs before the day's work begins or after the day's work is done. Fortunately (as noted in yesterday's blog), I don't wait until the last minute to do my work. This blog was prepared after midnight.
Today, when I turned on my computer at my office, I was met with a new, unexpected challenge: my hard disk crashed. I'm a fireman, so I got to put out another fire.
After many F10s (for those of you who know what F10s are), I chose the last remaining option other than buying a brand new PC and tolerating Vista's faults: to take the plunge and do a system recovery on my PC, and if the system recovery worked, I would get to [my semantic preference to "have to", to reduce cognitive dissonance] reload all of my software and data into my PC.
My priorities instantly shifted: the appointments and work that I had scheduled for the day had to take a back seat - so I rescheduled them. I got my necessary work and communications done in the time gaps while my system recovery slowly but successfully worked and while I revisited and reloaded my software and data into my PC.
I got home a few minutes before midnight, PC back in operation - challenge overcome. I ate dinner, and then sat down to think and write this blog.
I could have just gone to bed, but I have been enjoying the discipline and opportunity to take on new challenges that daily blogging has offered me, so I will endeavor to keep the daily blogs going until my next vacation [and vacation means to me freedom from any activity, rest, respite, intemission, recreation, an "interval" to give my brain and hands a break, time to go out to play].
In the 4th paragraph of yesterday's blog, I briefly addressed the possibility that a Court might not grant a Bifurcation under certain circumstances. In the 6th paragraph, I noted that the granting of a Bifurcation is discretionary - it is not mandated.
So today, in the wee hours of the morning, I conceived and am writing about few examples of circumstances in which a good argument can be made to oppose a bifurcation.
Family Code Section 2337(c)(2) provides that between the time of the bifurcated status dissolution of marriage and the entry of judgment on all remaining issues, the bifurcating party shall maintain all existing health insurance coverage for the other party and any dependent minor children so long as eligible to do so. BUT if or when the bifurcating party is not eligible to do so, he, in effect, becomes the health insurer of the other party: the bifurcating party must, at his sole expense, provide and maintain comparable health insurance coverage to that which has been existing just prior to the bifurcation, and if that coverage is not available, the bifurcating party shall be responsible to pay, AND SHALL DEMONSTRATE TO THE COURT'S SATISFACTION THE ABILITY TO PAY for the health care of the other party and minor children to the extent that care would have been covered by the existing health coverage, but for the dissolution of the marital status, and shall hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. OUCH!
As I noted above, the bifurcating party, in essence, becomes the health insurer for the other party pending resolution of the reserved issues in the case following the Bifurcated Status Dissolution. To cover the health care costs of someone with a pre-existing condition can be a mighty expensive obligation, and the Court will, pursuant to Family Code Section 2337(c)(2), make a determination as to whether or not the bifurcating party has the ability to pay for such health care during the period between the bifurcation and resolution of the balance of the divorce issues in the case.
If the judicial officer feels that the bifurcating party may not be able to afford to pay the health care expenses of the other party pending determination of the reserved issues, the judicial officer may deny a reqested Bifurcated Status Dissolution.
If a Bifurcated Status Dissolution is sought against a person with significant health problems, a competent divorce and family law attorney representing that person should perform discovery into the Bifurcating party's ability to pay significant health care expenses; if ability to pay is apparent, that person's attorney should ask the Court to require the Bifurcating party to post security to provide a fund to cover those expenses to ensure that payment will be forthcoming; if discovery reveals inadequate income or assets to cover such health care expenses, those facts and documents should be set forth in the opposing party's response to a motion for bifurcation, along with historical documents reflecting the non-bifurcating party's ongoing and anticipated continuing health care needs and expenses, as justification demonstrating why the Court should deny the motion.
Another consideration could be argued. COBRA coverage is available only for three years following a Status Dissolution, and is costly. The advantage of COBRA coverage is that there is no exclusion for pre-existing conditions.
A party with pre-existing conditions will likely find it impossible to secure health insurance coverage following expiration of the COBRA period. The COBRA period begins upon entry of the Status Dissolution. The Bifurcating party would be required to pay the COBRA costs pending resolution of the reserved issues in the case. However, the clock would start to tick on the three years of COBRA coverage upon entry of the Status Dissolution, effectively shortening the period of time during which the party with pre-existing conditions could obtain health coverage [since the ATROs during the pendency of the divorce case restrain the parties from cancelling insurance coverage; during the marriage, employment-realted health insurance coverage invariably provides for coverage of spouses and dependents - even with pre-existing conditions, at reasonable cost].
Those factors, coupled with the non-bifurcating party's inability to afford the COBRA payments after the reserved issues are resolved, could be presented and argued to the Court by a competent divorce and family law attorney as justification why the Court should not grant a Bifurcated Status Dissolution.
Another area of opposition to a Bifurcated Status Dissolution comes to mind. After 10 years of marriage, a spouse is entitled to derivative Social Security benefits, i.e., that spouse has the election of receiving his/her own Social Security benefits, or if the other party earned significantly more, that spouse has the election of receiving Social Security benefits calculated on the basis of the other party's contributions to the Social Security system. So if a Bifurcation is sought by the wealthier party at a point 9-1/2 years into the marriage, a Court may well pay attention to an opposition to the Bifurcation seeking to delay termination of marital status until after the 10-year mark.
It is after 1:00 a.m., so these examples will be all that I post tonight - more may follow. Perhaps I'll follow with a blog reflecting some of the protection areas that the Bifurcating party loses by bifurcating marital status. Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party.
Please address to me any areas of divorce or family law on which you would like to see another Blog from me.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, effectively and aggressively representing clients in family law and divorce cases throughout the counties of Los Angeles and Ventura for over 35 years, based in the San Fernando Valley, and appearing before Superior Courts including Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, and many others, representing divorce and family law clients in matters involving (or opposing) Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child custody, visitation, child support, spousal support, and all other areas of divorce and family law practice.
Speaking about challenges, you might note the time I posted this blog - I prepare my blogs before the day's work begins or after the day's work is done. Fortunately (as noted in yesterday's blog), I don't wait until the last minute to do my work. This blog was prepared after midnight.
Today, when I turned on my computer at my office, I was met with a new, unexpected challenge: my hard disk crashed. I'm a fireman, so I got to put out another fire.
After many F10s (for those of you who know what F10s are), I chose the last remaining option other than buying a brand new PC and tolerating Vista's faults: to take the plunge and do a system recovery on my PC, and if the system recovery worked, I would get to [my semantic preference to "have to", to reduce cognitive dissonance] reload all of my software and data into my PC.
My priorities instantly shifted: the appointments and work that I had scheduled for the day had to take a back seat - so I rescheduled them. I got my necessary work and communications done in the time gaps while my system recovery slowly but successfully worked and while I revisited and reloaded my software and data into my PC.
I got home a few minutes before midnight, PC back in operation - challenge overcome. I ate dinner, and then sat down to think and write this blog.
I could have just gone to bed, but I have been enjoying the discipline and opportunity to take on new challenges that daily blogging has offered me, so I will endeavor to keep the daily blogs going until my next vacation [and vacation means to me freedom from any activity, rest, respite, intemission, recreation, an "interval" to give my brain and hands a break, time to go out to play].
In the 4th paragraph of yesterday's blog, I briefly addressed the possibility that a Court might not grant a Bifurcation under certain circumstances. In the 6th paragraph, I noted that the granting of a Bifurcation is discretionary - it is not mandated.
So today, in the wee hours of the morning, I conceived and am writing about few examples of circumstances in which a good argument can be made to oppose a bifurcation.
Family Code Section 2337(c)(2) provides that between the time of the bifurcated status dissolution of marriage and the entry of judgment on all remaining issues, the bifurcating party shall maintain all existing health insurance coverage for the other party and any dependent minor children so long as eligible to do so. BUT if or when the bifurcating party is not eligible to do so, he, in effect, becomes the health insurer of the other party: the bifurcating party must, at his sole expense, provide and maintain comparable health insurance coverage to that which has been existing just prior to the bifurcation, and if that coverage is not available, the bifurcating party shall be responsible to pay, AND SHALL DEMONSTRATE TO THE COURT'S SATISFACTION THE ABILITY TO PAY for the health care of the other party and minor children to the extent that care would have been covered by the existing health coverage, but for the dissolution of the marital status, and shall hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. OUCH!
As I noted above, the bifurcating party, in essence, becomes the health insurer for the other party pending resolution of the reserved issues in the case following the Bifurcated Status Dissolution. To cover the health care costs of someone with a pre-existing condition can be a mighty expensive obligation, and the Court will, pursuant to Family Code Section 2337(c)(2), make a determination as to whether or not the bifurcating party has the ability to pay for such health care during the period between the bifurcation and resolution of the balance of the divorce issues in the case.
If the judicial officer feels that the bifurcating party may not be able to afford to pay the health care expenses of the other party pending determination of the reserved issues, the judicial officer may deny a reqested Bifurcated Status Dissolution.
If a Bifurcated Status Dissolution is sought against a person with significant health problems, a competent divorce and family law attorney representing that person should perform discovery into the Bifurcating party's ability to pay significant health care expenses; if ability to pay is apparent, that person's attorney should ask the Court to require the Bifurcating party to post security to provide a fund to cover those expenses to ensure that payment will be forthcoming; if discovery reveals inadequate income or assets to cover such health care expenses, those facts and documents should be set forth in the opposing party's response to a motion for bifurcation, along with historical documents reflecting the non-bifurcating party's ongoing and anticipated continuing health care needs and expenses, as justification demonstrating why the Court should deny the motion.
Another consideration could be argued. COBRA coverage is available only for three years following a Status Dissolution, and is costly. The advantage of COBRA coverage is that there is no exclusion for pre-existing conditions.
A party with pre-existing conditions will likely find it impossible to secure health insurance coverage following expiration of the COBRA period. The COBRA period begins upon entry of the Status Dissolution. The Bifurcating party would be required to pay the COBRA costs pending resolution of the reserved issues in the case. However, the clock would start to tick on the three years of COBRA coverage upon entry of the Status Dissolution, effectively shortening the period of time during which the party with pre-existing conditions could obtain health coverage [since the ATROs during the pendency of the divorce case restrain the parties from cancelling insurance coverage; during the marriage, employment-realted health insurance coverage invariably provides for coverage of spouses and dependents - even with pre-existing conditions, at reasonable cost].
Those factors, coupled with the non-bifurcating party's inability to afford the COBRA payments after the reserved issues are resolved, could be presented and argued to the Court by a competent divorce and family law attorney as justification why the Court should not grant a Bifurcated Status Dissolution.
Another area of opposition to a Bifurcated Status Dissolution comes to mind. After 10 years of marriage, a spouse is entitled to derivative Social Security benefits, i.e., that spouse has the election of receiving his/her own Social Security benefits, or if the other party earned significantly more, that spouse has the election of receiving Social Security benefits calculated on the basis of the other party's contributions to the Social Security system. So if a Bifurcation is sought by the wealthier party at a point 9-1/2 years into the marriage, a Court may well pay attention to an opposition to the Bifurcation seeking to delay termination of marital status until after the 10-year mark.
It is after 1:00 a.m., so these examples will be all that I post tonight - more may follow. Perhaps I'll follow with a blog reflecting some of the protection areas that the Bifurcating party loses by bifurcating marital status. Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party.
Please address to me any areas of divorce or family law on which you would like to see another Blog from me.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, effectively and aggressively representing clients in family law and divorce cases throughout the counties of Los Angeles and Ventura for over 35 years, based in the San Fernando Valley, and appearing before Superior Courts including Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, and many others, representing divorce and family law clients in matters involving (or opposing) Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child custody, visitation, child support, spousal support, and all other areas of divorce and family law practice.
Sunday, April 26, 2009
UNTYING THE KNOT EARLY: BIFURCATION OF MARITAL STATUS
Certified Family Law Specialist DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a divorce and family law attorney who has been aggressively and effectively serving clients in Los Angeles and Ventura counties for over over 35 years, offering a free confidential consultation regarding your divorce or family law problems, brings you another informative blog, addressing BIFURCATION OF MARITAL STATUS, in a series of blogs designed to inform and educate readers about various areas of Divorce and Family Law, and how he deals with challenges presented to him.
In my Friday, April 24, 2009 blog, entitled A CREATIVE APPROACH TO THE PRACTICE OF DIVORCE AND FAMILY LAW, I addressed services that I had performed for a client who had an exigent need to "untie the knot", i.e., obtain a Judgment terminating his marital status before the balance of his divorce issues were resolved, so that he could marry his fiance' before her U.S. visa expired.
Today, I'll address some of the mechanics, requirements and consequences for BIFURCATION OF MARITAL STATUS.
Before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status, and conditions which the Court may impose on the party seeking Bifurcation, and the possibility that a Court may not grant a Bifurcation under certain circumstances. Consult a competent divorce or family law attorney for guidance before you make such an important decision.
Bifurcation of Marital Status cannot become effective prior to the 6-month time limitation under FAMILY CODE Section 2339: "Waiting Period Before Dissolution Judgment Becomes Final" - the clock on which begins to tick only upon service of a copy of the Summons and Petition on the Respondent [the "cooling-off period" mandated by the legislature for parties to re-think dissolving their marriage; until the early 1970s, the initial Judgment issued by the Court was only an "Interlocutory Judgment" and the "Final Judgment" couldn't be filed until at least 6 months later].
Bifurcation is consistent with the legislative policy of the Family Code to allow quick dissolution of Marriage. The FAMILY LAW ACT, as augmented and interpreted by the Judicial Council rules, authorizes a trial court, in its discretion, not only to bifurcate the trial, but to enter a separate judgment of dissolution before other issues have been litigated. [In re Marriage of FINK (1976) 54 Cal.App.3d 527]. Consistent with the legislative policy favoring no-fault dissolution of marriage, the moving party needs only slight evidence for bifurcation. [GIONIS vs. Superior Court (1988) 202 Cal.App.3d 786, 790]. California Rules of Court, Rule 5.175, authorizes the bifurcation of one or more issues to be tried separately before other issues are tried. Family Code Section 2337(a) provides that upon noticed Motion, the court may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
An APPLICATION OR RESPONSE TO APPLICATION FOR SEPARATE TRIAL [Judicial Council Form FL-315] must be included with the Notice of Motion. That form was revised in January, 2009 from the former APPLICATION FOR SEPARATE TRIAL, and is the current form adopted for mandatory use by the Judicial Council for such purpose.
Family Code Section 2337(b) and Los Angeles Superior Court local Rule 14.17 require that the moving party serve his/her Preliminary Declaration of Disclosure with all required attachments on the nonmoving party, with the proposed Status Judgment, and file a proof of service with the Court, for a bifurcated dissolution of marital status.
Family Code Section 2337(d) requires that the moving party join his/her retirement or pension plan as a party to the proceeding for dissolution (divorce) prior to or simultaneously with entry of judgment granting status dissolution, and requires certain language to be set forth in an attachment to the Judgment granting status dissolution provisionally awarding, without prejudice, a separate interest equal to 1/2 of all benefits accrued under the specific plan(s), naming the plans, during the marriage, and requiring the plans to continue to treat the parties as married (or domestic partners as the case may be) for purposes of any survivor rights or benefits available under the plan, among other required language.
A BIFURCATION OF STATUS OF MARRIAGE OR DOMESTIC PARTNERSHIP - ATTACHMENT [Judicial Council Form FL-347, adopted for Mandatory Use - new as of January 1, 2009] must be attached to the proposed Judgment, and the Court will impose certain conditions and may impose certain other conditions set forth in Family Code Section 2337(c) upon the moving party if it grants the Motion for Bifurcation of Marital Status and a Status Dissolution of the Marriage, and the Court will reserve jurisdiction for later determination of all other pending issues in the case.
If you have any questions or concerns about BIFURCATION OF MARITAL STATUS, or any other Divorce or Family Law matter, call DONALD F. CONVISER at 818-880-8990 for a free confidential consultation.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, aggressively and effectively representing people in divorce and family law cases throughout the counties of Los Angeles and Ventura for over 35 years, before the Superior Courts in Los Angeles, Ventura, Van Nuys, Simi Valley, San Fernando, Burbank, Glendale, Pasadena, Pomona, and Santa Monica, representing family and divorce clients in matters involving Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoptions, nonmarital disollutions, child support, spousal support, child custody, child visitation, and all other areas of family law and divorce law practice.
In my Friday, April 24, 2009 blog, entitled A CREATIVE APPROACH TO THE PRACTICE OF DIVORCE AND FAMILY LAW, I addressed services that I had performed for a client who had an exigent need to "untie the knot", i.e., obtain a Judgment terminating his marital status before the balance of his divorce issues were resolved, so that he could marry his fiance' before her U.S. visa expired.
Today, I'll address some of the mechanics, requirements and consequences for BIFURCATION OF MARITAL STATUS.
Before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status, and conditions which the Court may impose on the party seeking Bifurcation, and the possibility that a Court may not grant a Bifurcation under certain circumstances. Consult a competent divorce or family law attorney for guidance before you make such an important decision.
Bifurcation of Marital Status cannot become effective prior to the 6-month time limitation under FAMILY CODE Section 2339: "Waiting Period Before Dissolution Judgment Becomes Final" - the clock on which begins to tick only upon service of a copy of the Summons and Petition on the Respondent [the "cooling-off period" mandated by the legislature for parties to re-think dissolving their marriage; until the early 1970s, the initial Judgment issued by the Court was only an "Interlocutory Judgment" and the "Final Judgment" couldn't be filed until at least 6 months later].
Bifurcation is consistent with the legislative policy of the Family Code to allow quick dissolution of Marriage. The FAMILY LAW ACT, as augmented and interpreted by the Judicial Council rules, authorizes a trial court, in its discretion, not only to bifurcate the trial, but to enter a separate judgment of dissolution before other issues have been litigated. [In re Marriage of FINK (1976) 54 Cal.App.3d 527]. Consistent with the legislative policy favoring no-fault dissolution of marriage, the moving party needs only slight evidence for bifurcation. [GIONIS vs. Superior Court (1988) 202 Cal.App.3d 786, 790]. California Rules of Court, Rule 5.175, authorizes the bifurcation of one or more issues to be tried separately before other issues are tried. Family Code Section 2337(a) provides that upon noticed Motion, the court may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
An APPLICATION OR RESPONSE TO APPLICATION FOR SEPARATE TRIAL [Judicial Council Form FL-315] must be included with the Notice of Motion. That form was revised in January, 2009 from the former APPLICATION FOR SEPARATE TRIAL, and is the current form adopted for mandatory use by the Judicial Council for such purpose.
Family Code Section 2337(b) and Los Angeles Superior Court local Rule 14.17 require that the moving party serve his/her Preliminary Declaration of Disclosure with all required attachments on the nonmoving party, with the proposed Status Judgment, and file a proof of service with the Court, for a bifurcated dissolution of marital status.
Family Code Section 2337(d) requires that the moving party join his/her retirement or pension plan as a party to the proceeding for dissolution (divorce) prior to or simultaneously with entry of judgment granting status dissolution, and requires certain language to be set forth in an attachment to the Judgment granting status dissolution provisionally awarding, without prejudice, a separate interest equal to 1/2 of all benefits accrued under the specific plan(s), naming the plans, during the marriage, and requiring the plans to continue to treat the parties as married (or domestic partners as the case may be) for purposes of any survivor rights or benefits available under the plan, among other required language.
A BIFURCATION OF STATUS OF MARRIAGE OR DOMESTIC PARTNERSHIP - ATTACHMENT [Judicial Council Form FL-347, adopted for Mandatory Use - new as of January 1, 2009] must be attached to the proposed Judgment, and the Court will impose certain conditions and may impose certain other conditions set forth in Family Code Section 2337(c) upon the moving party if it grants the Motion for Bifurcation of Marital Status and a Status Dissolution of the Marriage, and the Court will reserve jurisdiction for later determination of all other pending issues in the case.
If you have any questions or concerns about BIFURCATION OF MARITAL STATUS, or any other Divorce or Family Law matter, call DONALD F. CONVISER at 818-880-8990 for a free confidential consultation.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, aggressively and effectively representing people in divorce and family law cases throughout the counties of Los Angeles and Ventura for over 35 years, before the Superior Courts in Los Angeles, Ventura, Van Nuys, Simi Valley, San Fernando, Burbank, Glendale, Pasadena, Pomona, and Santa Monica, representing family and divorce clients in matters involving Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoptions, nonmarital disollutions, child support, spousal support, child custody, child visitation, and all other areas of family law and divorce law practice.
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