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A California Court of Appeals has ruled that a Trial Court was wrong by failing to list its reasons for deviating from guideline in making child support order of less than guideline for the child of an extraordinarily high earner and by relying on Mother and Childs expenses and lifestyle instead of the high earners expenses and lifestyle. In the case of Y.R. v. A.F., Father and Mother had a brief affair during which Mother discovered that she was pregnant with Fathers child. Mother gave birth to their daughter in July of 2006. Father, a successful director with a wife and three kids, paid some of Mother and Childs expenses and gave Mother $5,000 per month. Mother, a hair stylist, did not seek a formal support order until October of 2014. In her petition, Mother sought an order establishing Fathers paternity, and requiring Father to pay Childs health insurance, uninsured health care expenses, and half of Childs extracurricular activities.

After filing her petition, Mother sought documents regarding Fathers income and expenses, lifestyle, and payments for other expenses of his children. In response, Father stated that he was an extraordinarily high income earner, per California Family Code Section 4057, and could pay any child support order commensurate with Childs reasonable needs. Instead of responding to Mothers discovery requests, Father provided a declaration, listing his salary at $2.2 million per year or $190,000 per month. Mother disputed that Father was such a high income earner, but did not seek further responses. In her declaration, Mother described living in a three-bedroom, two-bath apartment in Santa Monica, which was cramped because her other two children also lived there. Mother asserted that she should be able to have a four-bedroom condo in the same area at a monthly rental of between $6,000 and $15,000 per month. She also asserted that Child should have a nanny, tutoring, take various lessons, and go to camp. She reported income of $1,833 per month and expenses of more than $6,000.

In response, Father reported an annual salary of a little more than $2 million, monthly rent of $20,000, more than $3,000 per month each for various living expenses, $31,000 per month for other expenses and so on. Father submitted a DissoMaster report, calculating guideline support for Father at $11,840 per month. Father argued that ordering that amount would exceed Mother and Childs stated expenses and urged Trial Court to order less than guideline. Father did not discuss his lifestyle, or calculate reasonable support based on his monthly income and expenses. Mother disputed Fathers income and her accounting expert calculated Fathers average income at $336,000 per month, for a guideline support order of $25,000 per month.

After a hearing, Trial Court found that Father was an extraordinarily high wage earner, but his income and expense report was unsubstantiated. Focusing on Mothers income and expenses, Trial Court found that guideline support would exceed Childs needs. Trial Court then ordered Father to pay Childs school tuition, 75% of her extracurricular activities and school expenses, all of Childs health insurance, and 90% of Childs uncovered medical expenses. It ordered him to pay child support of $8,500 per month as a reasonable amount to allow Child to live at an appropriate standard. When Mothers attorney objected that Mother and Childs past expenses were not commensurate with Childs current needs, Trial Court disagreed, saying that Mother had the burden of showing that Childs reasonable needs would not be met by the order. Trial Court final order contained the income and expense figures on which it had relied, but did not explain its reasons for deviating from guideline or state why the award was in Childs best interests. Mother appealed, and now California Court of Appeals has reversed and remanded the case back to Trial Court with directions.

The Appellate Court has ruled that (1) Trial Court failed to comply with statutory requirements for deviating from guideline; (2) as parent invoking high earner exception, Father had the burden of showing that guideline child support would be unjust or inappropriate; and (3) Childs needs should not have been determined by Mothers income and expenses, but by Fathers disposable income and standard of living (regardless of whether it benefits Mothers other children). The Appellate Court reverses and remands the case back to Trial Court to assess whether $25,000 per month guideline support order would exceed Childs needs and if so, to state in writing or on the record the reasons why the child support order should differ from guideline and is consistent with Childs best interests.

Because the importance of this agreement, it makes sense to get legal advice and make sure you don’t miss anything that could come back to bite you. If you live in Bakersfield or Kern county our attorneys at Azemika & Azemika stand ready to help you.

A “Separation Agreement” is a ‘document’ or a ‘contract’ between you and your spouse. Do not confuse it with the ‘process’ of getting legally separated.

As a contract, it is legally binding and deals with all the aspects of your separation such as alimony, how your property is divided, insurance coverage, and more.

Your Separation Agreement can address where the children will live, spells out the visitation schedule, and how much time they’ll spend with each parent and when. Without this spelled out in a Separation Agreement you could end up losing many nights of sleep fighting over custody.

The Separation Agreement can divide up the responsibility on who pays for the living expenses such as mortgage/rent, groceries, taxes, utilities, insurance, etc. while separated.

Use this contract to agree on who pays whom and how much. It also serves as financial proof (like a receipt) that you can use to claim tax deductions during tax time.

This is a biggie. The Separation Agreement helps avoid confusion and weeks of he said, she said later on about the family assets.

For example, it can direct how savings and investment accounts will be managed while separated. Will real property like your house, boats, cars be divided or sold for cash, and who get’s how much of the proceeds.

If you have income producing assets such as rental property or a small business, the Separation Agreement can spell out who get the cash flow.

This contract (Separation Agreement) is necessary and useful to start over because it can also serve as the bases of gaining clear title, or clear the slate on loans so new ones can be taken out.

Your separation should not leave you poor in your old age. The Separation Agreement can guide how retirement accounts will be valued and split fairly.

You’re separating from your ex for a reason. Make sure its permanent. The Separation Agreement is proof and protection in case your ex changes his or her mind and decides to sue for more money, custody, or pretty much anything related to your separation.

If your ex takes on future debts and liabilities, your Separation Agreement proves you’re not responsible for paying any of them back.

If your ex gets into a car accident and the victim goes fishing and tries to take your money, the Separation Agreement shields you and beats back greedy people trying to get to you through your ex.

You can draft a Separation Agreement on your own. But seeing everything that’s on the line, you’re better off getting the support of an experienced attorney who can protect you and make sure you don’t overlook any important points that can blow up in your face later.

If you live in Kern County/Bakersfield, contact the lawyers at Azemika & Azemika or call 661-322-8166.

When a family splits up, it’s common for the exes to go their separate ways.

Often it means wanting to move to another county, state, or even country.

Sometimes it’s to work at a better job. Other times it’s a way to heal and start life over. Or maybe you or your ex found someone else, the right person this time, and need to move far away to live together.

The trouble starts when a child is caught in the middle.

Courts prefer both parents to be present and part of the child’s life. The courts do not want to uproot a child and keep him or her away from a parent.

They see this as disruptive and prefer a stable and continuous custody arrangement for the child.

This situation makes it difficult for either ex to move far away with the child, but is especially difficult on the parent with primary custody who wants to leave.

California Family Code Section 7501 does not restrict the parent with primary custody from moving and changing the child’s permanent residence.

However, the other parent has to agree to the move.

Often times, parents can agree to terms on their own. Or, for the lucky few with money, flying cross-country is not a burden.

In these cases, moving far apart and still spend time with the child tends to work itself out.

For everyone else, trying to relocate with a child can be a huge burden and nightmare. For this reason it’s important to work with knowledgeable Bakersfield attorneys who specialize in ‘Move-Away Relocation Requests’ like those you find at Azemika & Azemika.

If you have sole custody and want to move, then your ex has to show that the move will be bad for your child.

There are exceptions to the rule, in which case working with an attorney would be in your best interest.

You are the primary custodial parent:

You want to move out of state with your child. Your ex says no. If you can’t work out an agreement… You have to go to family court and get a move away order that allows you to move with your child. You have to prove that moving with your child is in your child’s best interest. But courts already lean to deny move-away requests believing it prejudices the child’s rights or welfare.

In the celebrity case with actress Halle Berry, despite her financial resources, she couldn’t get an order allowing her to move her child to France.

You the non-primary custodial parent:

Your ex wants to move away with your child. If you don’t agree and can’t work anything out You need to file a stay order to deny the move. If your ex pushes the issue, you may have to prove that your child is better off not moving.

In some cases, the court will automatically assume that the primary custody asking for a move away order is going to move even if the order is denied.

So in a number of twisted court cases, when the primary custody parent got denied, the court then changed the custody arrangement giving sole custody to the other parent!

Yes this is confusing and could become a nasty surprise to both parents. So beware.

The best course of action is to work with Kern County family law attorneys experienced in move away and stay orders, as well as the ins and outs of child custody. Call our office: (661) 322-8166.

A California Appellate Court has ruled that a Trial Courts consideration of Wife’s claim of domestic violence in making its spousal support order does not preclude Wife from pursuing a separate tort action against Husband for that same domestic violence. In the case of Boblitt v. Boblitt, Wife moved in with Husband in February of 1983, and from the very first day, Husband began verbally abusing her. Eventually, verbal abuse escalated to physical abuse; Husband broke Wife’s jaw in December of 1984. The abuse did not end when they were married in December of 1989, but continued up to and beyond Wife’s filing for divorce in January of 2004.

In January 2007, Wife filed a statement of issues in the divorce case, which contained detailed descriptions of Husbands physical and emotional abuse and Wife’s claim that her ability to work had been impaired by those injuries. Three days later, Wife filed a separate tort action against Husband, seeking damages for domestic violence, assault and battery, breach of fiduciary obligations, and intentional and negligent infliction of emotional distress.

In April of 2008, Family Law Trial Court issued a statement of decision and judgment on reserved issues in the divorce case, stating that in making its spousal support order, it considered, among other factors, Wife’s claims of domestic violence. In another section of that statement, Family Law Trial Court stated that Wife had been allowed to testify about every domestic violence incident up to the date of trial, found some incidents unbelievable, and found that Husband had behaved in intimidating manner and had done some things he should not have. Family Law Trial Court noted that it was remedying detrimental effect of Husbands actions on Wife’s business by awarding eight months of spousal support, conditioned on no contact between the parties. Family Law Trial Court denied Wife’s request for award of funds for past and future medical bills, counseling, and pain and suffering, noting that such an award would be inappropriate. After moving unsuccessfully for a new trial, Wife appealed.

Around December of 2008, Husband moved for a judgment on the pleadings in Wife’s tort action, claiming that all the causes of action could have been or were tried in the parties divorce case (including domestic violence and Wife’s request for reimbursement of medical bills, and for pain and suffering), which barred their re-litigation. In opposition, Wife contended that the tort action was not precluded because the divorce judgment was not final (appeal was still pending) and domestic violence issues were not litigated in the divorce case. Trial Court granted Husbands motion on grounds of res judicata or collateral estoppel, and subsequently dismissed Wife’s action.

Claiming that Trial Court erred in granting Husbands motion, Wife appealed, and in a partially-published opinion, a California Court of Appeals has now reversed and remanded the case back to Trial Court with directions. The Appellate Court has ruled that (1) Wife has not waived her arguments because they present questions of law and are not based on disputed facts; (2) Wife’s domestic violence claims are not precluded by res judicata or collateral estoppel because they are not based on the same primary right (spousal support request is not based on primary right to be free from personal injury); (3) Family Law Trial Courts denial of Wife’s request for award of funds for medical bills and pain and suffering did not preclude separate tort action for domestic violence claims because Family Law Trial Court had no authority to award damages; and (4) Husband failed to carry his burden of showing that domestic violence claims were litigated in the divorce case. The Appellate Court has further ruled that Trial Court erred by granting Husbands motion, and thus, has reversed the dismissal, and has remanded the case back to Trial Court with directions to vacate the order granting Husbands motion for judgment on the pleadings and to enter a new order denying that motion. In the unpublished part of the opinion, the Appellate Court has ruled that the divorce judgment could not have preclusive effect on Wife’s tort action because it was not final when Husband filed his motion for judgment on the pleadings.

Collecting back child support can be a complex and lengthy process since each situation is unique. This article gives you a 30,000 foot view on the rights you have to collect child support, resources available to help you do it, and touches on common trouble spots to avoid.

In order for you to claim child support, you must first officially file and receive a court order establishing child support. To get this process started, you can use a number of agencies such as your county’s Family Law Facilitator, your Local Child Support Agency (LCSA), the Department of Child Support Services (DCSS). There is a lot of information out there in regards to claiming spousal support but unique situations when dealing with claiming spousal support are best answered by your Kern County Family Law Attorneys. Experienced Bakersfield divorce lawyers will answer your questions on what you can do if your ex doesn’t pay child support.

Biological parents. If you are the biological parent, you owe the child support. It doesn’t matter if you were never married, don’t show up on the birth certificate, never knew you had a child, if it was a one night stand, etc. The biological parent is responsible for child support.

Child support, spousal support, custody, and visitation rights are all treated as separate situations. If your ex does not pay child support, it does not mean your ex is not allowed to visit your child. No one “buys” visitation rights with child support.

You cannot use your ex’s new spouse, girlfriend, or boyfriend to collect child support. Family Code 4057.5(a) doesn’t allow you to do this except in very rare cases of extreme hardship on the children. You’ll want to get a competent attorney to help you here.

How much back child support can I collect, example #1? In California, the clock starts when you file and the court issues support orders. Example, you never filed for child support while your child was a minor. Your child is currently 23 years old. You now want to claim child support for the past. You may not get it because it’s too late to file.

How much back child support can I collect, example #2? You filed for child support when your child was 8 years old, your child is now 23 years old. Your spouse never paid one cent of child support. Your spouse is still on the hook to pay back all the child support from age 8 to age 18 (the past ten years). Once child support is due, it’s owed until paid, even after the child becomes an adult.

When do child support obligations end? It ends when your ex files a new order stating your child turned 18 years old and graduated high school and not living with a parent. Or because your child is 19 years old, got married, joined the military, is emancipated, or dies.

What happens if our child is a disabled adult child? If your child cannot support him or herself, the court may order both parents to continue support even past age 19.

In California, back child support owed (arrears) cannot be waived or changed by the Court, even if the parents agree to it for whatever reason. Once owed, its always owed.

However, a Modification of a California child support order can be filed due to a change in circumstances. Such as:

Parenting time changed, Income from either parent changed, A parent has new children from another relationship, or The child’s expenses (child care, medical or other health related costs, etc.) have changed.

This only affects child support moving forward. It does not modify any child support owed before the Modification has been filed.

By law, interest gets added to the balance and a judge cannot stop this from happening. These charges can add up quickly and would be taken out of your ex’s paycheck.

Not paying child support has serious consequences especially if the court finds your ex has the ability to pay, but isn’t.

In this situation, the judge can decide that your ex is “in contempt of court” and threaten jail time. However, this is only used when all other options have failed.

The Child Support Enforcement Act of 1984 states that district attorneys (D.A.s) or state’s attorneys must help you collect child support. In any case, you’ll want to work with the court to enforce sanctions against your ex. And in California, you have the option of hiring a support enforcement agency to help you collect. Asking the help of an attorney early in the process is highly recommended. [link: https://azemikalaw.com/contact]

Once you get the proper help, some of the methods used to collect include:

Taking over tax refunds. Garnishing wages. Garnishing Social Security benefits Placing liens against or seizing property and real estate. Suspending business or professional licenses. Some states may revoke a driver’s license. In some cases, the federal government may refuse to issue a passport to your ex. And as a last resort, the court may impose a jail term.

You’ll still be able to enforce child support payment as above. Your ex cannot waive their obligations by moving to another state.

It maybe possible to enforce and collect child support if your ex lives in a Foreign Reciprocating Country and your state has an arrangement to enforce support judgments. But this is a complex area, so get the help of a competent attorney.

Your situation is unique. If you need action and advice that’s specific to Kern County and your real life situation contact our knowledgeable professionals at Azemika & Azemika Law, the premiere Bakersfield divorce lawyers.

A California Court of Appeal has ruled decedents second wife is personally liable to his first wife for continuing spousal support payments up to the fair market value of real property (including joint tenancy property) he and second wife held at time of his death. In the case of Kircher v. Kircher, Husband married his first wife (Wife-1) on December 10, 1960; they separated on February 13, 1970. In June 1976, Husband and Wife-1 signed a Marital Settlement Agreement that, among other things, required Husband to pay Wife-1 spousal support of $700 per month until the death of either party or Wife-1s remarriage, divided their community property assets and debts, and required Husband to make an equalizing payment to Wife-1 of $124,000 at the rate of $1,100 per month. Husband also agreed to will to Wife-1 his half interest in real property on Eddy Street in San Francisco. That Marital Settlement Agreement was apparently incorporated into their divorce judgment.

In Mary of 1987, Husband and Wife-1 signed a stipulation to modify their divorce judgment to provide that Husbands spousal support obligation would increase to $2,000 per month on February 1, 1987 and continue until Wife-1s remarriage, her cohabitation for 30 days in a “marital-like relationship,” or her death. Husband also agreed to buy or lease a new car for Wife-1 every five years and to provide health insurance for her under same conditions, as spousal support payments.

Husband married his second wife (Wife-2) in July of 1998. On November 11, 2004, Husband signed a new will that left Wife-2 several real properties and leasehold interests. Later, Husband transferred title to three of those real properties to himself and Wife-2, as joint tenants.

In January 2005, Husband died. Wife-2 subsequently sold two of the joint tenancy properties for net proceeds of more than $6 million. On July 11, 2005, Wife-1 filed creditors claim against Husbands estate in Probate Trial Court for past and future obligations under the 1987 modification of the Marital Settlement Agreement and the divorce judgment. Wife-2 made monthly spousal support payments to Wife-1 until April 2008, after which she paid only Wife-1s health insurance.

On May 16, 2008, Wife-1 filed a complaint against Wife-2 personally and in her capacity as Husbands executor, claiming that Wife-2 was personally liable for Husbands debts under Probate Code Sections 13550-13552 and seeking an award of damages and attorneys fees for breach of the modified Marital Settlement Agreement. Wife-1 followed up on October 7, 2008, with an amended complaint seeking a declaration that Wife-2 was obligated, as Husbands executor and personally, to comply with provisions of the modified Marital Settlement Agreement. In opposition, Wife-2 filed a motion for determination that Wife-1 could not seek payment from joint tenancy properties because surviving joint tenant takes property free of creditors claims. In response, Wife-1 explained that she was not seeking a lien on those properties, but wanted imposition of personal liability for continuing support payments up to their fair market value.

After a hearing, Trial Court denied W-2s motion, finding that pursuant to Probate Code Section 13351, a surviving spouses liability for decedent spouses debts is limited to the fair market value of parties real property community property and decedents separate property at the time of death, including joint tenancy property. After the bench trial, Trial Court determined that Husband knowingly and intentionally waived provisions of California Family Code Section 4337 [spousal support obligation terminates on death of either party or supported spouses remarriage] when he executed the modified Marital Settlement Agreement. Therefore, the obligations set forth in that document survived his death.

After moving unsuccessfully for a new trial, Wife-2 appealed, but, in a partially-published opinion, the California Court of Appeals has affirmed the Trial Courts decision. The Appellate Court has ruled that (1) California Probate Code Section 13351 refers to property characterized as community property or decedents separate property at the time of death; (2) the extent of surviving spouses liability depends on characterization of property, not form of title; (3) the fact that joint tenancy property passed to Wife-2 through right of survivorship does not change its characterization as community property at the time of Husbands death (joint tenancy property presumed to be community property); and (4) surviving spouses liability for decedent spouses debts is not extinguished because surviving joint tenant takes property free of encumbrance placed by decedent. The Appellate Court further ruled that Trial Court did not err in concluding that the value of joint tenancy property should be included in calculating the limit of Wife-2s liability for Husbands debts to Wife-1. In the unpublished part of the opinion, the Appellate Court agreed with Trial Court that modified Marital Settlement Agreement was a written agreement that waived application of California Family Code Section 4337.

A California Court of Appeals has ruled that a Trial Court was correct in ruling that Child has three parents and that Husbands paternity having been established under California Family Code Section 7540 conclusive presumption does not preclude biological Father from being the third parent of Child. California Family Code Section 7612(c) applies even where there is a stable marriage.

In the case of C.A. v. C.P., Mother had an affair with a co-worker (Father) in 2011, who was told by Mother that she was separated from her husband (Husband). In fact, Mother and Husband were not separated and were cohabiting during the affair. When Mother and Father conceived a child, Mother initially kept that news from Husband and from her employer; Mother told Father that she didn’t want their other co-workers to know about their affair. Husband later learned of Mothers pregnancy by Father, but chose to continue with the marriage. Mother and Fathers Child was born in July of 2012.

For three years after Childs birth, Mother and Husband allowed Father to take a parenting role in her life. Father received Child into his home, held her out as his child to his relatives, participated in Childs medical evaluations and paid child support. From the time that Child was seven months old, Father had regular overnight parenting on some weekends and saw Child during the week. Father believed that Child carried his last name, until he learned otherwise when Child was eight months old. Meanwhile, Child became closely bonded to Father and his family.

In November 2015, Father filed a petition to establish his paternity of Child, to change her name, and to undergo paternity testing. Mother and Husband then barred Father from having anything to do with Child, and Father stopped paying child support.

At a preliminary hearing, Trial Court issued an order for paternity testing. However, Trial Court denied Fathers request for visitation based on Mothers testimony minimizing Fathers involvement in Childs life. After a trial, Trial Court found that Mothers misleading portrayal of Fathers involvement caused it to deny the visitation orders it would otherwise have granted, and that despite the period of time that Father and Child were separated, Child was still strongly bonded to Father. Trial Court found that Father was Childs presumed father under Family Code Section 7611(d) [received child into his home and held her out as his child] and that Husband was Childs presumed father under Family Code Section 7540 [conclusive presumption that child born during marriage is child of cohabiting husband who is not impotent or sterile]. Trial Court determined that Child was strongly bonded to Mother, Husband, and Father, and that applying Family Code Section 7612(c) [three-parent statute] is appropriate to preclude Child from suffering detriment. Trial Court also ordered parties to mediation to resolve any custody conflicts and added Fathers last name to Childs existing names (but not as her last name).

Claiming that Trial Court was wrong in applying Family Code Section 7612(c), Mother and Husband appealed. Now, California Court of Appeals has affirmed Trial Courts decisions. The Appellate Court has ruled that (1) Husbands having qualified as Family Code Section 7540 father does not preclude Father from bringing paternity suit, qualifying as Childs presumed father, or being named Childs third parent (second father); (2) Mother and Husbands having a stable marriage does not preclude Trial Court from applying Family Code Section 7612(c); (3) period of separation for Father and Child does not mean that Father cannot be third parent where there is a continuing strong bond between the two; (4) Trial Court discussed all appropriate factors before determining that Child has three parents; (5) Family Code Section 7612(c) does not impinge on states right to protect marriage or on Mother and Husbands ability to exercise their parental rights; and (6) Mother and Husbands claim re Fathers standing to request a paternity test is moot because the test was already done and the justices cannot undo that which was done.