Father’s Timeshare for Child Support Is Zero Despite Mother’s Interference with Father’s Visitation

sample case about legal custody of Child and child support in california

In a partial reversal, a California Court of Appeals has ruled that a Trial Court was wrong by attributing extra unsubstantiated timeshare to Father to compensate for Mother’s alleged interference with and prevention of Father’s visitation with Child. According to the Appellate Court, actual timeshare must be used in calculating child support, which is not affected by one parent’s deprivation of other parent’s visitation rights.

In the case of County of San Diego v. P.B., Mother and Father were married in 1998; their Child was born in September 2001. In 2006, Mother filed for divorce. Child custody, child support, and visitation became issues of ongoing contention and dispute. Mother and Father had joint legal custody of Child, but Child lived with Mother, and Father had a fifty percent (50%) timeshare.

In 2011, “an incident at a restaurant” caused Father’s timeshare to change from fifty percent (50%) to supervised visitation only. From October 2014, through July 2015, Father had a twenty- nine (29%) timeshare. Meanwhile, in September 2014, Mother filed a motion for increased child support and determination of arrearages in the Family Support Division.

In October 2015, a family court services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused Child to be seriously afraid of Father and to not want anything to do with Father. The counselor reported Father’s claim that Mother made false accusations against him that detrimentally affected his relationship with Child. Child told the counselor that Mother had told him about examples of Father’s bad parenting in Child’s childhood, but he had no independent memories of them. The counselor concluded that Child was “emotionally stunted” and could not “psychologically see himself as a separate person from his mother.” Child’s memories of the restaurant incident served to validate Mother’s views of Father and made Child oppose any efforts to reunify with Father. The counselor recommended that Mother and Father have joint legal custody of Child, with sole physical custody to Mother and no parenting time for Father.

In September 2016, Mother and Father stipulated to a final custody order that provided for Father and Child to begin reunification therapy, and that after 60 days, Father could have increased parenting time up to fifty percent (50%) unless Child’s attorney or the reunification therapist opposed it on the basis of Child’s best interests. However, reunification therapy did not go well (Child threatened suicide and was taken for hospital evaluation). Father then filed a motion to modify custody, based on Mother’s having “brainwashed” Child and her determination to keep Child and Father apart. As to child support, Father’s attorney argued that Trial Court should attribute a fifty percent (50%) timeshare to Father, per parties’ stipulation, because of Mother’s efforts to thwart visitation. Trial Court made no finding of visitation interference by Mother, applied a zero timeshare, and ordered Father to pay $819 per month for child support, retroactive to October 1, 2014. Trial Court remarked that it might use another timeshare if it found that Mother had interfered with Father’s visitation.

In March of 2017, Father submitted a declaration contending that Mother interfered with his visitation time and failed to support his reunification therapy with Child. At a hearing on child

support in the Family Support Division in May of 2017, Trial Court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. Trial Court reasoned that it would be inequitable to permit Mother to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. Mother objected on the basis of California Family Code Section 3556 [enforcement of child support order not affected by custodial parent’s refusal to permit visitation].

At the next hearing in September 2017, Mother told Trial Court that Father and Child were undergoing conjoint therapy, but Child still refused any visitation with Father. Trial Court updated its interim orders, set child support at $286 per month from October 2014, through July 2015, using a 29% timeshare. For the period from August 2015, through December 2016, Trial Court used a 2% timeshare and ordered child support of $817 per month. From January 2017, forward, Trial Court set timeshare at 2% and child support at $892 per month plus back child support of $200 per month.

At a custody hearing in December 2018, Trial Court noted that Father had had no contact with Child, except for therapy sessions, since August 2015, and their estrangement was virtually total. Trial Court found it unclear that Mother had caused the estrangement, but recognized that Child was then 17 years old, which made a reconciliation highly unlikely. It cautioned Father that estrangement was not a defense to paying child support. Trial Court concluded that Mother and Father would have joint legal custody of Child, with Child to reside primarily with Mother and visit Father only by mutual agreement.

At a final hearing on child support, Family Support Division Trial Court commented that the evidence seemed to show that Mother’s actions were largely responsible for the estrangement between Child and Father and that the estrangement constituted a special circumstance. In a final child support order issued on January 18, 2019, Trial Court made no change to existing support order for the period of October 1, 2014 through July 31, 2015. For the period form August 1, 2015, through December 31, 2016, Trial Court attributed a 29% timeshare to Father and ordered $529 per month for child support. For the period from January 1, 2017, through October 31, 2017, Trial Court attributed the same timeshare, despite no visitation, and ordered Father to pay $649 per month. From November 1, 2017, forward, Trial Court applied a zero timeshare and ordered Father to pay $970 per month. Trial Court acknowledged Mother’s contributions to the estrangement.

Claiming that Trial Court erred by attributing extra timeshare instead of actual timeshare, Mother appealed Trial Court’s ruling, and now California Court of Appeals has reversed Trial Court in part and remanded the case back to Trial Court for further proceedings. According to the Appellate Court, (1) Trial Court stated no valid legal or factual basis for attributing extra timeshare; (2) Trial Court may not modify child support as a means of coercing custodial parent into compliance with custody orders; (3) Trial Court’s method of calculating child support was “tantamount to withholding child support” and was inconsistent with applicable law; and (4) Father’s parents’ payments for Father’s legal fees do not qualify as recurrent monetary benefits that are available for child support calculation. The Appellate Court has reversed the child

support calculation for time period from August 2015, through October 2017, and has remanded the case back to Trial Court for recalculation based on Father’s actual timeshare.

How Does Divorce Affect Health Insurance?

legal document about health insurance after divorce

During a divorce or legal separation, there are many considerations to keep in mind, like child custody, property division, and alimony/spousal support – but what about your health insurance?

Many couples forget to take into account the ramifications of divorce on their health insurance. Learning how your health insurance is affected by California divorce laws will help you be better prepared, both while going through the process of divorce or legal separation and for steps you may need to take after your divorce or legal separation is finalized.

Can One Spouse Terminate The Other’s Health Insurance During Divorce Or Separation Proceedings?

In many marriages, one spouse is covered by a health insurance policy that the other spouse receives through his or her job. This coverage extends to both the spouse and children, and during a divorce, the spouse who relies on that health insurance risks gaps in their coverage.

However, when a California divorce case is filed, immediate Automatic Temporary Restraining Orders (ATROs) are issued. ATROs are provided for under Family Code section 2040(a)(3) and they affect both parties’ health insurance policies in their ability to cancel coverage and change the beneficiaries of that insurance policy. That means one spouse may not remove the other from the policy or alter coverage, especially if the policy is employment-related coverage. These restraining orders protect the spouse and any dependents from gaps in coverage until final judgment in the case is granted.

If I’m On My Spouse’s Health Insurance, What Happens To My Coverage After The Divorce Or Separation Is Final?

The ex-spouse is no longer considered a “family member” under California family law, which means you will lose dependent status under your spouse or partner’s health insurance and will no longer be eligible for coverage under that plan. This means you may suffer a gap in coverage. It’s possible, under Family Code §2051, to continue your existing health insurance after divorce if negotiated and agreed upon during divorce proceedings. Azemika & Azemika Law can help you navigate this process. 

Children, however, remain legal “family members” and are therefore unaffected by changes in health insurance coverage unless the spouse with the insurance policy loses all parental rights.

What Protections Or Options Are Available Once I’m No Longer A Dependent On My Spouse’s Health Insurance?

In some cases, the insured spouse may be ordered to make a payment to the uninsured spouse specifically for health insurance coverage. This is more common if the uninsured ex-spouse is the custodial parent of a minor(s).

For a limited period of time (usually 18 months), the uninsured spouse may retain health insurance coverage through COBRA, the Consolidated Omnibus Budget Reconciliation Act. COBRA requires health insurance plans to offer continuation coverage under specific circumstances that would otherwise result in termination or reduction of plan benefits. This can give you enough time to secure your own health insurance plan without suffering a coverage gap. Your spouse’s employer is not required to subsidize your insurance, but they can charge you 102 percent of the cost. This is obviously quite expensive, so it’s a good idea to shop around marketplaces like Covered California for equivalent individual coverage through another plan.

If you do choose COBRA coverage, you can stay on that plan for up to three years if your former spouse or partner continues to work at the company and certain other conditions are met.

Some state and federal laws offer additional protection of health insurance benefits. Azemika & Azemika Law can help you find the best option to protect yourself and your loved ones.

What Are My Responsibilities If I Have To Remove My Spouse From My Health Insurance Policy?

If your insurance policy will no longer provide your ex-spouse’s health insurance after divorce or separation, you are responsible for notifying the plan administrator within 60 days after the date of entry of judgment of your divorce or legal separation.

How Does Legal Separation In California Affect Health Insurance?

Some couples choose legal separation instead of dissolution of marriage in order to avoid one spouse losing health insurance coverage. However, most health insurance plans treat legal separation in California the same as dissolution of marriage, meaning that one partner is no longer considered the dependent of the other for the purposes of health insurance coverage.

If your partner has a government health insurance plan, you may be able to remain a dependent, but this must be confirmed with the plan. If you do find yourself facing a coverage gap, COBRA, as discussed above, is an option for continuing health insurance coverage after separation is finalized.

Azemika & Azemika Law Is Here To Help You

Azemika & Azemika Law specializes solely in California family law services. Over the past 22 years, our partners have successfully handled the most difficult and high asset family law cases in Kern County. Our Bakersfield divorce lawyers can help you navigate California divorce laws to protect your financial stability and your loved ones. Don’t let stress and uncertainty over your future health insurance coverage add to the already difficult emotional toll of this phase. Let Azemika & Azemika help you find customized solutions to every aspect of your divorce case, including how health insurance coverage is handled, and set you on a path to a better future. Contact us today online or by calling (661) 322-8166

Divorce and Division of Property

court gavel for Division of Property in California

When a couple decides to divorce or legally separate, there are many critical issues they must address. One such issue is the division of property and marital assets.

Determining who gets what is often one of the most stressful parts of a divorce. Because the division of marital property can be such a tense issue, understanding California divorce laws can help you be prepared and ensure your rights are protected.

Distinguishing Marital Property and Separate Property

To determine the division of property in a divorce, there are two types of property that must be established; marital property and separate property.

California is known as a “community property” state, meaning that all property, assets, and debts acquired during the marriage are considered marital property, and are subject to an equal division between spouses or domestic partners if they divorce or legally separate.

Separate property refers to any property one spouse owned before the marriage or acquired by gift or inheritance during the marriage. It belongs to the individual spouse and is not typically divided in a divorce.

Separate property also usually includes items purchased with or exchanged for separate property, earnings on separate property, and any increase in the value of separate property, as long as the owner can verify the claim with financial records.

California law also states that property spouses acquire before a divorce is finalized, but any property acquired after the date of separation is considered separate property.

To clarify, the date of separation is not necessarily the date one spouse moves out of the marital home. Rather, it is the date that one spouse decides to end the marriage and it requires some act of physical separation combined with other actions clearly showing that the spouse has decided to end the marriage.

The date of separation can be a big issue in cases where one spouse earns or spends a significant amount of money right before the divorce. If a couple is unable to agree on a date, a court will decide after considering all the evidence.

Changing Separate Property Into Marital Property

Marital property and separate property can change from one to the other through a process known as transmutation. There are several ways this can happen.

First, a couple can agree, before or during marriage, to change an asset that was originally separate property into marital property, or vice versa.  A simple change of the title for the property is not enough. These agreements must be in writing and must clearly state the intention of the parties.

It is also possible for a spouse to unintentionally convert a separate asset into a marital asset by “commingling” separate property and marital property together. For example, a premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits into it or a house owned by one spouse alone can become marital property if both spouses pay mortgage or other expenses.

There are many types of assets that can be partially marital and partially separate including retirement accounts one spouse contributed to before and during the marriage, or a business one spouse started before marriage and continued running after marriage.

Distinguishing marital property from separate property can be rather complicated, especially in situations where there is a lot of commingling involved or one spouse owns a business. Couples who cannot decide what belongs to whom will have to let a court determine whether the commingled property should be considered marital or separate.

Determining Property Value

During the division of property in a divorce, the spouses will usually assign a monetary value to each item of property. If the spouses are unable to agree on an item the court will determine its value.

Naturally, some items are more challenging to value than others. You may need professional assistance to determine the value of antiques, artwork, or retirement accounts.

Division of Property in California

California divorce laws require that the net value of the marital assets be split equally between both spouses.

Spouses can divide assets by assigning specific items to each spouse, allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds.

Divorcing couples can also agree to hold property together even after the divorce. This is most common with spouses who want to keep a family home until their children are out of school.

The spouses must also assign all debts accrued during the marriage including car loans, mortgages, and credit card debts to one of the spouses. You should be aware that a divorce or separation agreement is not binding to creditors. This means they may continue to collect any jointly owned debt from either spouse even after the marriage is over.

If the court assigns a debt to one spouse, the other can request the court to put a lien on that spouse’s separate property as security for the payment of the debt.

Contact Azemika & Azemika Law

If you are going through a divorce and are unsure how your assets will be divided, Azemika & Azemika is here to help.

For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika, Kern County Divorce Attorneys. We will provide the guidance and representation you need to ensure your rights are protected.