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A California Court of Appeals has ruled that Trial Court was wrong in reducing the child support obligation of a high earner where salary reduction did not materially impair his ability to pay current child support amount because his other wealth more than made up for the reduction; Trial Court imputed too low a rate of return on his many millions in assets.

In the case of In re Marriage of Usher, Mother and Father were married in 2006; their child was born in February 2006. During the marriage Father, a successful director and producer earned $4.25 million per year; Father also had substantial assets in cash, investment funds, and real and personal property. Mother and Father separated in 2008.

In October 2009, Trial Court entered the parties stipulated divorce judgment which provided, among other things, that Father would pay child support of $12,500 per month, would permit Mother and Child to live in his Pacific Palisades home until June of 2010, and would pay an additional $5,000 per month for child support after they moved out. Father was also to pay spousal support of $15,329 per month to Mother for two years (October 2009, through September 2011), after which Mother waived any further right to spousal support. The judgment stated that Father was a high earner under Family Code Section 4057(b)(3), that the child support amount deviated from guideline, that Childs needs would be adequately met by the chosen amount, and that the parties had arrived at the amount with the aid of attorneys and accountants. In June of 2010, Mother and Child moved into another house in the same Pacific Palisades area, which rented for $7,500 per month, and Fathers child support payments increased to $17,500 per month.

In June of 2014, Father filed a request to reduce his child support payments to $5,184 per month, plus a percentage of any income earned above $841,272 per year. Father claimed to be earning substantially less now ($70,106 per month instead of $350,000 per month) and that the requested amount was arrived at by DissoMaster (the program that calculates California child support guideline), using his current salary, minus insurance and property taxes, and a 30% timeshare for Father. In opposition, Mother contended that Fathers salary reduction was not a material change of circumstances because he had numerous alternative sources of income and assets from which to pay child support. Before the hearing, Father conceded that Trial Court should impute some income from his other assets and contended that a rate of return of 1% would be reasonable in the current financial climate. Fathers CPA claimed that Father was against tying up his assets for long periods and was pursuing a very conservative investment strategy. Mother contended that Fathers investments should yield a 4.5% return.

At the hearing, CPAs for both parties testified regarding Fathers income, Fathers investment income and the rate of return, and the amount of income to be imputed to Mother. When the hearing concluded, Trial Court found that the reduction in Fathers salary constituted a material change in circumstances, imputed a 4.5% return on Fathers non-income producing assets (anticipated property sales) and a 1% return on his other investments (Fathers average for last five years). Trial Court calculated Fathers monthly income at $140,000 and Mothers imputed income at $3,343 per month, deducted property taxes on Fathers Montecito home of $6,000 per month and came up with a child support order of $9,842. Trial Court also ordered Father to pay Ostler and Smith (a percentage) child support on any earned income of more than $1,681,692 per year, plus Childs private school tuition, medical insurance premiums, medical expenses not covered by insurance, and 85% of Childs costs for extracurricular activities. Claiming that Trial Court erred by reducing child support and imputing a rate of return on Fathers investments that was too low, Mother appealed.

Now, California Court of Appeals has reversed Trial Court. The Appellate Court has ruled that:

(1) Where a child support order is arrived at by a stipulated divorce judgment, Trial Court must consider the parties intent and their reasonable expectations when making a reduction;

(2) This Stipulated judgment stated that current child support payment was necessary to meet the Childs needs and support him in accordance with Fathers lifestyle;

(3) At the hearing, Father presented no evidence that his salary deduction made him unable to pay the current child support amount;

(4) The reduction in income, standing alone, is not a sufficient change of circumstances to support a child support reduction where payor is still able to meet his obligation with income from other assets;

(5) The parties agreement that the current child support order was necessary to meet Childs needs was evidence that a child support reduction would cause Childs needs to be unmet (Father failed to show that Childs financial needs had diminished);

(6) Evidence did not support imposition of a 1% rate of return on Fathers investment portfolio; and

(7) Trial Courts imputing an unreasonably low rate of return on Fathers investments resulted in a child support order that deprived Child of funds to support the lifestyle that Father had agreed was appropriate and could easily afford to provide.

In California, there are three ways to end a domestic partnership or marriage: dissolution, commonly known as divorce, legal separation, and annulment, also known as nullity.

When it comes to divorce, there never is an easy way to tackle this complicated issue. Legal separation may be a choice you make depending on the unique circumstances you and your partner encounter.

According to the Superior Court of California, legal separation is similar to the dissolution of marriage, except both parties remain married to one another. Both parties can include resolution of issues regarding child custody, visitation, child support, spousal support, asset and debt division, former name restoration, and restraining orders. During the tenure of legal separation, neither party can marry or enter a domestic partnership with another person.

Legal separation has been viewed as the foundation for a divorce agreement. You may find information on how to file for a separation agreement, but it is important to consult an experienced family law divorce attorney so you are apprised of your legal rights and on important legal issues regarding your situation during this process.

California is a no-fault state, which means when filing for divorce or a legal separation, the asking party does not have to prove the other party did something wrong. For both divorce and legal separation, you must choose between irreconcilable differences or the incurable insanity of your spouse. While divorce requires you to be a resident for six months then wait six months before the divorce is final, there is no residency requirement or waiting period for legal separation.

Some couples may choose legal separation instead of divorce for the simple fact of needing to maintain the marital status. Some may need to maintain their marriage status in regards to tax filing status, health insurance, or immigration. Having a legal separation allows them to live apart without affecting their other rights.

Another strong reason one may choose legal separation over divorce is that one may feel that legal separation gives them the necessary legal space apart to be able to consider their options. Legal separation is a softer action to take, rather than the finality of divorce.

For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika Law. We will craft fast and effective solutions for your unique circumstances and needs. We will fight for and protect you and your family during the separation and divorce process.

A California Court of Appeals has ruled that a Trial Court was not wrong by awarding child support which was less than the guideline support where Trial Courts order took into account Fathers extremely high income, Childs need for support commensurate with Fathers lifestyle, and Childs best interests.

In the case of S.P. v. F.G., Mother, a star in Swedish reality television, became pregnant by Father, a successful business man with a net annual income of more than $4 million. Shortly before their Child was born, Father agreed to provide financial support for Child to the tune of $9,200 per month. In early 2015, Father increased that amount to $10,000 per month, and continued his additional payments for Childs educational expenses, extracurricular activities, and medical expenses.

When Child was age 10, Mother filed a petition to establish Fathers legal relationship with Child. Mother followed up two years later with a request for a guideline child support order, along with a supporting declaration and an Income and Expense Declaration. Alternatively, Mother asked that the child support order be no less than $35,000 per month and to include Father paying for all of Childs medical care, education, and extracurricular activities. In a subsequent Income and Expense declaration, Mother claimed proposed needs of $78,155 per month, $69,420 of which was attributable to Childs needs. Mother sought enough support to upgrade their housing from the 2,700 sq. foot house in Pacific Palisades that they now rented for $5,480 a month to a furnished home that was comparable to Fathers and rented for $34,000 per month complete with appropriate staff and amenities. Mother claimed that Child needed $4,725 a month for entertainment, gifts, and vacation, $3,100 a month for groceries and eating out, more than $3,000 per month for clothing and dry cleaning, plus many thousands more for a Mercedes-Benz and attendant expenses, utilities, and phone services. Mother also stated that 14-year-old Child needed $1,200 a month for cosmetology, massages, and spa treatments because Child was extremely beautiful and would undoubtedly be a top model in the future.

After due consideration, Trial Court issued an order calculating guideline support at $40,882 per month, but deviating downward from that figure. Trial Court specifically determined that some of the proposed needs submitted by M appear to have no factual support or appear purposely inflated and facially unreasonable (such as summer camp for Child, who did not attend summer camp). Trial Court also found no evidence to support Mothers need for better housing or to indicate that Childs needs were not currently being met. Trial Court determined that the payments that Father had been making for Childs expenses were some indication of Childs needs. Trial Court listed the amounts it considered reasonable for each of the various categories of expenses Mother had stated in her Income and Expense Declaration and concluded that a child support order of $14,840 per month would be reasonable and consistent with Childs best interests. Trial Court also ordered Father to pay all of Childs reasonably necessary medical expenses, cost of Childs medical insurance, and as add-ons, private school tuition, school expenses, and costs of extracurricular activities. Trial Court stated that this order was an increase from Fathers prior payments, would supply Child with a high/affluent standard of living, and would meet Childs reasonable needs. Trial Court concluded that guideline order would not be in Childs best interests and would exceed Childs needs, and that Fathers timeshare was zero. Claiming that Trial Court erred in ordering below guideline support based on Childs historical expenses and not future expenses or Fathers wealth, Mother appealed.

The California Court of Appeals, however, has now affirmed Trial Courts decision. The Appellate Court has ruled that (1) Trial Court did not make its order based on Childs historical expenses, but also took into account Childs reasonable current and anticipated needs; (2) Trial Court properly failed to limit Fathers responsibility for Childs future expenses for tuition, school expenses, and costs of extra-curricular activities and took into consideration Mothers claimed need for better housing; (3) sufficient evidence supported Trial Courts deviation from guideline child support; (4) Trial Court was not wrong in declining to rubber stamp Mothers proposed expenses and weeding out the reasonable from the factually unsupported; (5) Trial Court correctly made detailed explanation for its reasons for deviating from guideline child support; and (6) Trial Court did not err in finding that its order was in Childs best interests.

Termination of parental rights refers to the legal severing of the parent-child relationship by the state. There are many reasons to pursue termination of parental rights. You may be a parent seeking to end parental rights for the other parent to protect your child. You may be a stepparent interested in adopting your stepchild. Whatever your reason, terminating parental rights is the first step towards adoption. The court will determine what is in the best interests of the child. California public policy assumes it is in the best interests of the child to be in contact with and receive support from both parents, until and unless the court determines that the parent(s) is unfit to care for the child. The process for filing for terminating parental rights includes understanding the reasons to petition for parental rights, knowing who can bring up a parental rights termination case, and when a termination of parental rights should be filed.

In California, there are some legal reasons the court would consider terminating parental rights. Some issues that may lead to parental rights termination are:

One parent cannot voluntarily terminate their parental rights to avoid paying child support or to resolve custody disputes, even if the other parent agrees. A parent may give up their parental rights is if there is a stepparent willing to take over the legal responsibilities and obligations for the child through a formal adoption. A parent cannot petition for terminating parental rights simply because they are upset at the other parent or they are attempting to block the other parent from taking part in their minor child’s life. There must be a legal basis in order to petition for terminating parental rights.

One may file for child abandonment and pursue a parental rights termination case to legally sever the parent-child legal relationship concerning custody and otherwise, if the child is under 18 and fits within the descriptions of California Family Code Section 7822. Examples of those who can file a proceeding for parental rights termination include:

A Juvenile Dependency Court proceeding can terminate parental rights if one or both parents have been deemed unfit to care for the child. In this scenario, when parental rights are terminated, the government becomes the legal guardian for the child. The child may be legally adopted without prior parental consent.

California Family Code section 7822 provides that one may bring a child abandonment case under any of the following situations:

Termination of parental rights can be a difficult situation to navigate, and not every petition for terminating parental rights is granted. If you are a parent who is either filing for termination of parental rights, or facing a case where your parental rights may be terminated, you need to hire experienced family law legal counsel to protect your rights.

Every child deserves the support of a loving family. We at Azemika & Azemika Law understand that terminating parental rights takes a heavy emotional toll on families, but is also the first step in uniting families through adoption. Our experienced Kern County Family Law attorneys understand that you want to protect a child you love. We will bring you fast and effective solutions customized for your unique needs when it comes to pursuing termination of parental rights in Kern County. With the knowledgeable professionals at Azemika & Azemika Law, our premiere Bakersfield divorce lawyers focus on your family, so you can focus on the future.

Divorce is a life changing decision that must be handled with utmost care. Even under the best of circumstances, divorce can take a heavy emotional toll on both parties involved. Thinking about or going through a divorce? Here are the top three mistakes people make during divorce.1. Letting anger get the best of you in divorce, emotions may run high and an argument with your ex seems inevitable. However, behaving out of anger will not end well for your case. Saying something during divorce proceedings that normally would have been said during marriage can take a different connotation, and can be perceived as threatening. This may lead to your ex getting a restraining order and having you removed from the household. When children are involved, this can negatively affect them. Children may feel bad when one parent badmouths another, and began to believe it is their fault. It is important to never use children as pawns in your divorce, or you can further fragment your family. Children need to know that divorce is not their fault, and they have two parents who love them.2. Being passive Allowing guilt or fear to dictate your actions during a divorce may prevent you from seeking what is fair and right. There is life after divorce, and it is important that you make sure you are able to live within your means after the dust settles. Some people mistakenly believe that allowing their ex to kick them out of the house, or voluntarily moving out, alleviates them of responsibility of supporting that household. Between paying rent on a different place and supporting the previous household financially, the costs can build up quickly. Understand that you have to make a living after divorce, and your children have the right to live a decent life. Being passive during a divorce may cause further setbacks, draining you both emotionally and financially.3. Not getting the right legal representation Not all divorces are created equal; there is no one advice that fits all divorces. Taking advice from family or friends who have “been there, done that” is not recommended. While their advice may be useful, they are not licensed professionals. Finding the right legal attorney means looking for someone who can maintain balance between you and your ex, while also doing what’s best for your family. It’s important to choose someone who is well versed in family law, and will pay attention to the details of your case. Family law is changing all the time, and it’s best to stick with those who know how best to meet your needs. Take no substitutes for your family law legal lawyers! Acting on bad legal advice may have heavier penalties than if you had taken no action at all. At Azemika & Azemika Law, we exclusively practice family law. With the dedicated professionals at Azemika & Azemika, we give you fast, sympathetic, and effective solutions that you deserve. By creating a support plan, you will receive legal advice specifically crafted for your situation. We will fight for you and your family. If you need help in navigating your divorce proceedings, please contact us.

In reversal, a California Court of Appeals has ruled that Trial Court was wrong in maintaining 50-50 timeshare after awarding Mother sole legal and sole physical custody of Children due to Fathers domestic violence. According to the Appellate Court, it was an abuse of discretion by Trial Court to award equal time to Father absent a showing that equal timeshare was in Children’s best interests.

In the case of Celia S. v. Hugo H., Mother and Father had a long romantic relationship. During their relationship, they had two children (now ages 12, and 6). The relationship ended after Father committed several acts of domestic violence. In February of 2014, Mother and Father stipulated to a Trial Court order for joint legal and joint physical custody of Children and an alternating weekly custody split.

In January of 2015, Mother invited Father to have dinner with her and the Children at her apartment. While dinner was cooking, Father left the room to take a phone call. Mother sat down where Father had been sitting and began to help their oldest Child with his homework. When Father returned, he demanded to have his chair back and when Mother refused, he allegedly pulled Mother up by her hair. While Mother tried to get away, Father punched her in her ribs or stomach. After they argued some more, Mother told Father to leave; Father did, but loitered outside. Mother called police, who arrested Father for domestic violence. The next day, Mother sought a Domestic Violence Protection Act restraining order and an order for sole legal and sole physical custody of the Children, per California Family Code Section 3044 [presumption that custody award to perpetrator of domestic violence is not in child’s best interests].

Trial Court issued a Temporary Restraining Order and scheduled a hearing. At that hearing, Trial Court heard conflicting testimony about the incident from Mother and Father, and received social workers report detailing Children’s observations and fears regarding Fathers domestic violence. Trial Court issued a one-year restraining order, required Father to complete a 52-week batterers program, concluded that Mother was a victim of domestic violence, and awarded her sole legal and sole physical custody of the Children. However, Trial Court left the parties 50-50 timeshare in place, after modifying the exchange location.

Claiming that Trial Court was wrong in maintaining the 50-50 timeshare on these facts, Mother appealed. Now, a California Court of Appeals has ruled that (1) Trial Court must apply Family Code Section 3044 presumption in any case where it makes a domestic violence finding; (2) Section 3044 presumption may be rebutted by a showing that it would be in child’s best interest to give custody to batterer; (3) Trial Courts maintaining of 50-50 timeshare effectively awarded [Father] joint physical custody even though it labeled the order as visitation; (4) Trail Court may not circumvent Section 3044 requirements by labeling an impermissible custody award as visitation; and (5) Trial Court abused its discretion by failing to apply the Section 3044 presumption properly and awarding joint physical custody to Father without evidence that doing so would be in Children’s best interests. Finding no merit in Fathers other contentions, the Court of Appeals reverses Trial Courts order and remands the case back to Trial Court for further proceedings consistent with its decision.

Alimony refers to monthly stipends payable to a spouse or domestic partner for a specific duration after divorce. When a spousal support order is acquired as part of a divorce, your former spouse or domestic partner must start making payments as per court order. A start date for the spousal support, also known as alimony, will be included with this order. Just like child support, an alimony order naming a payor is legally binding. If spousal support is not paid, you may have several options before seeking a contempt order.

Enforcement Actions Spousal support enforcement begins with a judgement entered by the court. If child support is involved in your case, you may contact your local child support agency to provide an enforcement order. They can calculate payments owed and notify the payor of the amount due. The payor is given time to rectify their arrears, or make arrangements. Contempt charges can be filed against a payout for non-payment, partial payment, or late payment. However, this is usually the last resort, as filing the motion of contempt requires you to prove that there is an established alimony judgment entered by the court, that the payor must have knowledge of this court order, and the payor willfully violated said court order. With filing a motion of contempt towards the payor, the burden to prove violation of spousal support falls on your shoulders. Keeping a detailed record of payments received before and after an enforcement action taken on your behalf can assist your case.

One factor that may be considered is non-payment versus partial payment. Does the payor have other bills that need to be taken care of, like rent, car payments, utility bills, as well as spousal support? The question may lean towards the payor’s priorities, rather than ability to pay. Due to the recurrent nature of the alimony, each payment can be subject to separate proceedings, up to three years. Each case is unique. Depending on circumstances and the seriousness of the charges brought against the payor, whether fines or jail time, should not be taken lightly: an experienced spousal support attorney can handle the complex aspects of your case and assist you in arriving at the best solution for your needs. Garnishments and Levies Wage garnishment, also called an earnings assignment order, and levies are commonly used to enforce a spousal support order. Wage garnishment is a deduction from the debtor’s earnings payable to the entitled spouse; an employer is legally obligated to perform an earnings assignment within ten days of receipt. An employer who fails to comply with the wage garnishment is violating the spousal support order, may face legal action, and subject to contempt proceedings. If the employee had no control over the situation, they may not be guilty of contempt liability, due to the fact they did not willfully violate a court order. If your order involves child support, income types like Social Security or Disability that are usually exempt from earnings assessment become eligible for collection due under child support. Your local child support agency may garnish your wages or bank accounts, seize properties, suspend driver’s and professional licenses, or even divert federal and state tax refunds to ensure a spousal support order is met. Motion for Hearing Has the payor still failed to bring alimony payments up to date after notification and enforcement action? Filing for a motion using Form FI-195, Income for Withholding Support, which is available online from the California Courts website, will call for a hearing in the civil court that handled your spousal support case. Through filing a motion for hearing, you bring court attention to alimony payments owed, financial aspects of both parties, and apply for any and all possible solutions for a genial conclusion. The motion must be served to the other party through third party over the age of 18; law enforcement or a private process server. The court will apprise the payor of the date and time of the hearing, in which each party has a chance to explain the circumstances relating to the status of the spousal support. Contempt Proceedings

Debts cannot be enforced by contempt through any California divorce and family law order. Spousal support and family support, which is a combined case of child and spousal support, fall under support obligations and are not considered debts. Whereas payments made by the payor that satisfy a community liability or obligation, such as a house or car payment, are not enforceable through contempt unless the payee can prove that that these are integral to the support order. This can become a very tricky and rough area to navigate due to the complexity of the involved details.

According to the California Code of Civil Procedure 1218(c), for each act of contempt, the convicted spouse or parent shall be fined up to $1000 and or imprisoned for up to five days. Each nonpayment amount can be considered a separate act, meaning that the payor can be found in contempt several times, and charged ten percent annually on arrearage. The court can also assign community service.

Your Spousal Support Representation Matters

Unfortunately, having a spousal support order entered by the court does not remove the need for court intervention and legal counsel. When it comes to pursuing alimony payments, representing yourself pro-se can lead to difficulties in finding effective remedies and the resulting frustration. Having an experienced spousal support collection attorney ensures each available enforcement solution is explored.

Contact our experienced spousal support attorneys today. The professionals at Azemika & Azemika are dedicated in providing you with the immediate relief you deserve. There is no need to leave your situation up to chance when Azemika has your back. With exclusive experience in family law, Azemika & Azemika Law bring you knowledgeable alimony counsel and optimal strategies uniquely crafted for your situation.

Before his death in 1990, Fathers father held multiple parcels of real property in various trusts, one of which was the Deluca Properties Trust (DPT). One of the properties in DPT was the Florida Street property (an apartment complex). After Fathers father died, Father, his sister (Sister), and their brother (Brother) engaged in years of litigation over their fathers trusts. Meanwhile, Father married Mother on September 7, 1996.

On October 25, 1996, Father, Sister, and Brother reached a settlement agreement to resolve the trust litigation, which included the usual release of claims. Father received commercial properties in Santee, Encinitas, and San Diego; Sister received the Florida Street property and a $75,000 promissory note from Father secured by a first deed of trust on the San Diego property, along with a $32,000 forgiveness of debt from Brother. Brother received title to another San Diego property and a $250,000 promissory note from Father, secured by a third-priority deed of trust on the Santee and Encinitas properties. The agreement also provided that Father relinquished his status as a trust beneficiary and agreed that the trust assets belonged solely to Sister and Brother, and that the agreement could be amended only by a written agreement signed by all the parties.

In September of 1997, as Father would later testify, he and Sister signed a second agreement (Amendment to Settlement Agreement and Mutual Release), which provided that Sister would transfer the Florida Street property to Father by grant deed in exchange for a promissory note of $164,700, secured by the property. Father was to have the option of assuming the first deed of trust of $235,300, or continuing to make the monthly payments on that deed of trust. Father would also pay $20,000 to Sister. The agreement expressly stated that it was intended to be a redistribution of trust assets and not to change any of the provisions of the original agreement, except as stated. Father and Sister signed the agreement; Brother did not.

In January of 1998, at Fathers request, Mother signed a quitclaim deed transferring any interest she had in the Florida Street property to Father as his separate property. In 2002, she signed a spousal acknowledgment that she had no interest in the property in conjunction with a refinance on it.

Mother and Father separated on November 21, 2011. In subsequent proceedings, Father was awarded sole custody of their two children. In the divorce papers, Father stated that he owned and operated an insurance agency, and also owned and managed several income-producing rental properties. Mother, who had a B.A. and a paralegal certificate, had worked as a legal secretary all during their marriage. At trial, Mother claimed that the Florida Street property was community property, but Father maintained it was his separate property. Father claimed that the property was part of his inheritance, while Mother contended that he acquired it during their marriage by a sale between him and Sister. Accountants for both parties testified about the methods each used to calculate Fathers income and determine whether Father had used community property funds to acquire the Florida Street property.

When the trial concluded, Trial Court found, among other things, that the Florida Street property was Fathers separate property, that Father had overcome the presumption of undue influence regarding Mothers signing the quitclaim deed and spousal acknowledgment, and that tracing method used by Fathers accountant was accurate. Trial Court also included the payments on principal Father made to service loans on his income producing properties as income available for spousal support and ordered Father to pay $7,500 per month to Mother for spousal support.

Mother appealed Trial Courts determination that the Florida Street property was Fathers separate property and Father appealed the spousal support order. Now, a California Court of Appeals has affirmed Trial Courts decision in part and has reversed the decision in part.

With respect to the characterization of Florida Street property, the Appellate Court has ruled that Trial Court was wrong in determining that the Florida Street property was Fathers separate property because (a) Father acquired it from Sister by purchasing it, not by inheritance, (b) the amended settlement agreement was not valid because Brother did not sign it,(c) Fathers inception of title argument is unpersuasive, (d) Fathers accountants tracing evidence was insufficient to show that he acquired the property solely with separate funds, and (e) Mothers signing quitclaim deed and spousal acknowledgment did not constitute valid transmutation because Mother lacked full knowledge of the facts and the documents did not contain statutorily required language regarding the change in ownership and characterization of the property. Appellate Court also ruled that Father is entitled to California Family Code Section 2640 reimbursement on showing of his separate property contributions.

With respect to the issue of spousal support, the Appellate Court has ruled that Trial Court was also wrong by including the payments Father made on the property loans as income available for spousal support. Finding guidance in a Wyoming Supreme Court case (Fleenor v. Fleenor (Wyo.1999) 992 P.2d. 1065), the Appellate Court states the general rule that the principal portion of a business mortgage payment may be deductible from income available for spousal support if Trial Court determines that the payment reasonably and legitimately reduces net income for support under the relevant circumstances (ordinary and necessary business expense versus substantial hardship to payor).

The Appellate Court reverses Trial Courts orders regarding the Florida Street property and spousal support payments and sends the case back to Trial Court for further proceedings, but affirms all other provisions of the divorce judgment.

A big topic in headlines today, Angelina Jolie and Brad Pitt recently filed for divorce. Word has it that Jolie is seeking joint legal custody, but sole physical custody. While divorce is a sensitive topic for all those involved, it is important to understand these terms in relation to your children. What is the difference between legal and physical child custody, and which would be best suited for your children? Child custody can be a difficult and complex issue to navigate in family law, that varies from state to state. An experienced family law attorney can assist you in understanding these terms and their implications, outlining goals for your case, what you may expect from proceedings, and types of custody arrangements the judge may set up.

Physical custody refers to where the child will be living; whether your home, or your ex-spouse’s home. The judge may consider a wide range of factors when coming to a decision. The best interests of the child are top priority. The court may also consider each parent’s capacity for providing care, the stability of the home environment, each parent’s history of domestic violence, drug, or alcohol abuse, among other factors. It’s possible to establish joint physical custody, but this may be difficult for the child involved, even if both parents prefer this. Usually, a child may live at one residence and have frequent visitation with the other parent.

Legal custody is about having the authority to make major decisions regarding how the child is raised. This can refer to decisions relating to your child’s education (where they go to school), healthcare (whether or not they receive medical care), and religious preferences (what religions are practiced, and what kind of activities are observed). In emergent situations, legal custody grants the parent the right to make immediate decisions.

If knowing is half the battle, speaking with an experienced child custody attorney will help you minimize this traumatic time for your family. With the family law professionals at Azemika & Azemika, we will create fast, sympathetic, and effective solutions specifically crafted for your situation. Contact us today for assistance with Legal and Physical Child Custody.

What Is The Difference Between Legal And Physical Custody?

A big topic in headlines today, Angelina Jolie and Brad Pitt recently filed for divorce. Word has it that Jolie is seeking joint legal custody, but sole physical custody. While divorce is a sensitive topic for all those involved, it is important to understand these terms in relation to your children. What is the difference between legal and physical child custody, and which would be best suited for your children? Child custody can be a difficult and complex issue to navigate in family law, that varies from state to state. An experienced family law attorney can assist you in understanding these terms and their implications, outlining goals for your case, what you may expect from proceedings, and types of custody arrangements the judge may set up.

Physical Custody

Physical custody refers to where the child will be living; whether your home, or your ex-spouse’s home. The judge may consider a wide range of factors when coming to a decision. The best interests of the child are top priority. The court may also consider each parent’s capacity for providing care, the stability of the home environment, each parent’s history of domestic violence, drug, or alcohol abuse, among other factors. It’s possible to establish joint physical custody, but this may be difficult for the child involved, even if both parents prefer this. Usually, a child may live at one residence and have frequent visitation with the other parent.

Legal Custody

Legal custody is about having the authority to make major decisions regarding how the child is raised. This can refer to decisions relating to your child’s education (where they go to school), healthcare (whether or not they receive medical care), and religious preferences (what religions are practiced, and what kind of activities are observed). In emergent situations, legal custody grants the parent the right to make immediate decisions.

If knowing is half the battle, speaking with an experienced child custody attorney will help you minimize this traumatic time for your family. With the family law professionals at Azemika & Azemika, we will create fast, sympathetic, and effective solutions specifically crafted for your situation. Contact us today for assistance with Legal and Physical Child Custody.

A California Appellate Court has ruled that a Trial Court was wrong when it declined to enforce form I-864 (affidavit of support of immigrant by sponsor) in a divorce action because Wife made insufficient efforts to find work. Wife had no duty to mitigate damages and she had standing to enforce that form in state divorce court.

In the case of In re Marriage of Kumar, Husband, a U.S. citizen, and Wife, a citizen of Fiji, were married in Fiji on September 22, 2012, in an arranged marriage. Husband then filed a form I-130 petition for an immigrant visa for Wife. He also signed a form I-864 affidavit of support, which obligated him to support Wife for 10 years at an income that is at least 125% of the Federal Poverty Guidelines for his household size. The affidavit also stated that Wife would have the right to sue Husband for support if Husband failed to pay.

Wife arrived in the U.S. from Fiji in July of 2013, and began living in Daly City, California with Husband and his family. Wife would later allege that Husband began abusing her almost immediately. Husband refused to speak to Wife except to tell her that he didn’t want her and she should go back to Fiji. Wife claimed that Husband and his family tricked her into going to Fiji with them, and once there, he abandoned her and someone tore the legal permanent resident stamp out of her passport. After receiving temporary travel documents from the U.S. Embassy in Fiji, Wife returned to the U.S. on December 29, 2013.

On January 14, 2014, Husband filed for an annulment or alternatively for a divorce. In her response, Wife asked Trial Court to deny Husbands annulment petition, but to grant a divorce judgment. In April of 2014, Wife followed up with a financial statement showing that she had applied for TANF, SSI, or GA/GR, but had not received any benefits and had no salary.

At the May 7, 2014 hearing on spousal support, Wife’s attorney told Trial Court that Husband and Wife had agreed that Husband would pay W $675 per month for temporary support, but Wife would not agree to a seek work order or a Gavron warning [that she has a duty to become self-supporting within a reasonable period of time which usually is one-half the length of the marriage]. Counsel stated that Wife was on general assistance and living in a shelter, but could not seek work because Husband had stolen her current residency card. Husbands attorney countered that it was Wife’s choice to come here and stay here, thus, she had a duty to become self-supporting. Wife’s attorney then asserted that Husband had signed a form I-864 affidavit that obligated him to support Wife for 10 years or 40 quarters. Husbands attorney countered that the affidavit was irrelevant in this court.

When the hearing concluded, Trial Court ordered Husband to pay $675 per month for temporary support, per their agreement, declined to make a seek work order, gave a Gavron warning, and ordered Wife to make reasonable and good faith efforts to obtain the paperwork needed to enable her to work in the U.S.

On September 3, 2014, Husband sought an order terminating spousal support and granting a status-only divorce judgment. Husband claimed that Wife had not made the necessary efforts to become self-supporting and asked Trial Court to impute the income to Wife that she could expect to earn from a full-time minimum wage job. In her responsive declaration, Wife stated that Husband had stolen her green card and she was waiting for replacement papers. Wife also stated that she received cash aid and food stamps until Husband began paying her spousal support. Wife attached the I-864 form to her response, and asked Trial Court to continue support based on its requirements. Wife followed up with an amended memorandum of points and authorities, asking Trial Court to enforce the I-864 support requirements and to order Husband to pay $1,196 per month in accordance with the poverty guideline for 2014. Wife contended that the affidavit was an enforceable contract, was in addition to any spousal support payable under state law, and that the divorce did not wipe out its obligation. Wife also asserted that she was not required to file a separate contract action to obtain enforcement of the affidavit.

At the March 18, 2015 hearing, Trial Court heard argument on Husbands request to terminate spousal support and Wife’s request to enforce the affidavit. Wife’s attorney told Trial Court that Wife was working part-time at Blimpies for $9 per hour, and taking courses to obtain her GED. Trial Court terminated the temporary support order effective immediately. When Wife’s attorney asked for a ruling on enforcement of the affidavit, Trial Court responded that it declined to order spousal support because Wife failed to work up to her full potential. Trial Court stated that it was declining to enforce the affidavit because Wife failed to use her best efforts to find work, and told Wife to file a federal action. That same day, Trial Court entered the parties status-only divorce judgment and an order terminating spousal support.

Claiming that Trial Court was wrong by failing to enforce the affidavit on the basis of her work efforts, Wife appealed. Now, a California Court of Appeals has reversed Trial Courts decision. The Appellate Court has ruled that (1) I-864 affidavit creates a contractual right to minimum support from sponsor to immigrant; (2) sponsored immigrant may enforce I-864 contract in either the federal or state court (including in the divorce court); and (3) per Liu (7 Cir 2012) 686 F.3d 418, Wife has no duty to mitigate damages (no seek work requirement). The Appellate Court has ruled that Trial Court was wrong by denying Wife’s contract claim under the affidavit on the basis that she failed to use her best efforts to seek work. The Appellate Court reverses and sends the case back to Trial Court in order for Trial Court to consider that claim in accordance with this opinion.