Is your ex-spouse a "deadbeat"?

Is your child's father or mother not paying you the child support he/she owes? This article discusses your options.

In California, both parents have a duty to provide support for a child. Whether parents are unmarried, divorced, or separated, child support is usually paid by the parent who does not have primary custody of the child. These payments are intended to cover the child’s food, clothing, and housing, medical care, and education.  

Despite the existence of State guideline formulas, child support payments are one of the most contested aspects of divorce proceedings. Before we look at how to enforce child support payments, it’s important to keep in mind that visitation rights are entirely separate from child support obligations.  

To ask the Court to enforce your child support payments with Contempt, you must make sure that you have a written child support order. This order can be found in your Marital Settlement Agreement or in FL – 342 Child Support Information and Order Attachment. For child support and family support orders it does not matter if the order is based upon the court’s order after a hearing or based upon a stipulation of the parties.   

If there has been a failure of the other parent to pay child support, contempt proceedings are appropriate even if only some part of the child support is paid or if the child support is paid late.

The elements of contempt based on a failure to comply with a child support order differ slightly from other contempt cases. A prima facie case for child support contempt requires (1) a valid court order; (2) the other parent's knowledge of the order; and (3) noncompliance. Once this is established, the person charged with contempt has the burden of showing inability to pay by a preponderance of the evidence. This is different than other contempt cases because the person asking for contempt does not have to show that they know the other party has the ability to pay.

If the Contempt of court proceeding is for a willful violation to pay support, the contempt proceeding must be started no later than three years from the date that the payment was due.  

One important consideration is whether or not a partial payment is being made as opposed to a complete nonpayment.  In situations where there is a complete nonpayment of support you should look into whether your ex is paying other debts such as a mortgage or student loans or if his/her paycheck is being spent on entertainment or a high cost of living. 

It’s important to know that if the other parent doesn’t have the financial ability to make the child support payments due to unemployment or lack of available income, the Court is unlikely to hold the parent in Contempt but they will require that some of the unemployment income goes to support and they may order a parent to participate in job training or to comply with the terms of a seek-work order.   

However, unemployment without proof of attempts to find work is probably is no longer a defense. You can use a parents ability to earn to support a Contempt adjudication. 

Is there anything else I can do? Yes. Contempt is usually a last resort and in California there are other methods of child support enforcement. For example, payments can be withheld from the paycheck of the parent who owes child support, the cost of the insurance may be deducted from the noncustodial parent’s paycheck, a property lien can be put on any personal property and real property, and tax returns can be used to pay past due support.  Additionally, if a parent is behind on child support, the Department of Motor Vehicles may refuse to issue or renew their driver’s license.   

To summarize, in order to pursue contempt for failure to pay child support you need to (1) have a valid order, (2) the other parent has to know about the order; (3) the other parent has to have failed to pay child support.  Just remember that inability to pay is a defense for contempt.  

You can contact me at amanda@gordonfamilylaw.com to learn more. 

What to do if your ex does not pay support or follow visitation: how to file for Contempt.

Has your ex continued to fail to pay child or spousal support? Are you worried that your custody and visitation schedule is being ignored without repercussions? We understand. A motion for contempt is available to both Parties in a case when one Party refuses to comply with an enforceable California family law court order.
If you need to file for Contempt, it is important to learn how the Family Court process works. Family Code Section 290.

Experienced San Francisco Bay Area Family Law attorneys like Gordon Family Law advise clients that contempt motions can be time consuming, expensive, and intricate. Due to the complexity of contempt, Gordon Family Law promotes dispute resolution and recommends Family Court Services mediation as a first step. However, not all parties are cooperative in mediation and you may desire to file a Contempt motion against your ex. 

What do you need to prove? In order to prove contempt, you must demonstrate: (1) issuance of a valid order that is clear, specific, and unequivocal; (2) knowledge of that order on the part of the party alleged to be in contempt;(3) the ability of that party to comply with the order; and, and (4) that party’s willful failure to do so.   

What forms do you need? You must complete an Order to Show Cause and Affidavit for Contempt with Judicial Council Form FL-410 and a an Affidavit of Facts Constituting Contempt—Financial and Injunctive Orders with Judicial Council Form FL-411 or an Affidavit of Facts Constituting Contempt—Domestic Violence/Custody and Visitation with Judicial Council Form FL-412.  

How do you get a hearing? The Order to Show Cause form and Affidavit must be filed and served at least 21 calendar days before the date set for hearing.  The typical procedure is to deliver the OSC to the Judge and then return to that department to pick up the form and obtain a hearing date from the clerk. Next you must serve the other party. For contempt, service must be by personal service – and cannot be via mail or fax. 

What happens at the hearing? At the contempt hearing on the order to show cause for contempt, each party may be represented by counsel. If the other party is not represented, the court may advise your ex of his or her due process rights like the right to counsel and the Fifth Amendment privilege against compelled self-incrimination. Both sides are allowed to present oral testimony and evidence. However, there is no right to a jury trial for contempt in family law.   

What does contempt mean, what is the punishment? If your ex is found in Contempt of court for failure to comply with a court order under the Family Code, then he or she could be sent to jail or required to perform community service. The court will ask for future reports on the compliance of the orders. 
If your ex fails to appear at court, the court may issue a warrant for their arrest. This means that if your ex is pulled over for a traffic stop, they could be sent to jail without a hearing for contempt of court.  

Want to learn more?

Is your ex-spouse a "deadbeat"?

My ex spouse stopped my spousal support payments, what are my options?

My child’s mother does not follow our visitation schedule, how can I get her to comply.

What are the Steps of Divorce Mediation?

In California, mediation of custody disputes was introduced in the San Francisco Bay Area in the 1980’s and has since become mandatory. Today, Mediation is used for Divorce in the division of assets and debts, agreement on child and spousal support, and in pre-nuptial agreements.

Many San Francisco Bay Area clients are surprised to learn the process of mediation because there are very few trusted resources explaining the steps. The real issue is that Mediation can be modified to fit each and every individuals unique situation – so formalizing a process is a little against the grain.  However, Gordon Family Law wants to de-mystify the process and hopefully allow for individuals to have the information they need to make informed choices.

Step One: Choosing A Mediator

Mediation requests usually come from one spouse, who is tasked with the responsibility of choosing a divorce mediator. The spouse may meet with one to three mediators before selecting a Divorce Mediator.

The criteria used to choose a Divorce Mediator may be a little different than other areas of law. A mediator's power is in the art of persuasion and understanding human emotions and motives. Mediators are skilled at identifying sticky issues and finding solutions to problems.

In fact, Mediation is about navigating interpersonal dynamics so that each spouse feels heard in the process of dividing assets, debts, and care of their children. For this reason, it’s important to feel like you can speak to your Mediator and that your Mediator is able to understand and reflect back to you about your interests and needs in the Divorce. A good Mediator should feel like talking to a trusted Aunt or Uncle. This means that a Mediator may not tell you exactly what you want to hear, but they will give you the supportive feeling that they care about your case and your family.

Mediators that fit your family may come in all shapes and sizes. There are great Divorce Mediators in San Francisco who have attended all sorts of law schools and Mediators that started mediation early and late in their legal careers.  Remember, you are the most important person in this divorce process, so make sure you go with a Divorce Mediator that fits your values and philosophy.

I tell my clients to think about their divorce goals before they commit to my services. A true test is that your goals and the Mediators goals are clear and in alignment. Make sure you think about what you want out of your Mediator before you pick one.

Step Two: The First Meeting  

At the first meeting with your San Francisco Bay Area Divorce Mediator, the Mediator will establish ground rules such as confidentiality and scheduling.  
Mediators will also get right to the sticky issues- making sure to note which divorce issues are top priorities.  In my first meeting with families, I take care to explain how the law works in California and what the law would require if the Divorce goes to trial. This is to make sure that all parties have an understanding of the legal system before they discuss a deal.  

Step 3: Additional Meetings

Depending on whether your family has children, the subsequent meetings with your Divorce Mediator will be spent either on (1) parental planning or (2) financial mapping and planning.  In the case of complex custody or asset divisions, we may hire outside experts such as accountants and real estate agents, to make sure all parties have an equal understanding of the values of their assets.

Divorce Mediation seeks to bridge the gap between the financially sophisticated spouse and the spouse who may have less knowledge of financial matters. A good Divorce Mediator will spend time educating the spouses on their options and taking careful steps to make sure the process does not move forward until all parties actually understand the financial and tax consequences of their decisions.

Step 4: Drafted Settlement Agreement

At the conclusion of Divorce Mediation, clients should expect a drafted settlement agreement that details the party’s decisions on assets, debts, child custody and support, and spousal support. 

Step 5: Outside Consultation

During mediation, we encourage spouses to have private consultations with their own attorneys. These consultations serve as an excellent check on the Divorce Mediator.
If your divorce mediator does not recommend outside counsel – they may be afraid of another set of eyes on the decisions in mediation. You should feel encouraged and supported to get second opinions.  You wouldn’t have a novel medical procedure without a second opinion, so why should your nuanced divorce settlement be any different. 

Step 6: Signing the Forms

Once each party has had time to independently review the Marital Settlement Agreement, a Divorce Mediator will then help you file all required forms for a California Divorce. 

Step 7:  Follow Up

Most Marital Settlement Agreements identify and describe steps that need to happen after Divorce – whether that’s splitting tax liability in April of the next year, an inter spousal transfer, a new grant deed on property, or changes to your will and estate.  Gordon Family Law is happy to follow up with their clients – knowing that the Divorce Mediation process will change your family forever.
If you are interested in learning more about Divorce Mediation, please contact Gordon Family Law today.   

Read more on Mediation here:  

What is divorce mediation?

California Divorce Mediation Basics

Should I ask for an Annulment?

Experienced San Francisco Bay Area attorneys will inform clients about the option for an Annulment when they want to separate from their spouse.  Is Annulment right for you? This post covers some of the most common questions about Annulment in California.

What is an Annulment?

In California, an Annulment or “nullity” is when the Court determines that the marriage is not legally valid.   A marriage can be annulled or voided in cases of incest, bigamy, unsound mind, fraud, force, and physical incapacity.

What is the difference between Annulment and Divorce?

In the San Francisco Bay Area, a dissolution or Divorce is when the Court terminates a valid marriage on grounds arising after the marriage.  In contrast, an Annulment is when the Court terminates a marriage on the grounds that there was never a valid or legal marriage. In other words, a divorce action seeks to terminate marital status on grounds that occurred during the marriage, while a nullity action seeks to inquire whether any such status ever existed.

What are some advantages of asking the Court for an Annulment?

There are some advantages of pursing an Annulment. 

1.     First, there is no 6-month waiting period from service of process (or the respondent’s appearance).  

2.     Second, there is a possibility to restore rights that were lost as a result of the marriage.

3.     Third, if the responding party is not a putative spouse it may be possible to prevent that party from obtaining orders (for example, division of property, support, attorney fees and costs) in a nullity action that he or she could obtain in a dissolution action.

What are some of the disadvantages of asking the Court for an Annulment?

1.     First, proving the grounds for annulment may be more complex, difficult and costly than a divorce.

2.     Second, California community property laws that protect married couples will no longer be in place if the marriage is annulled. 

3.     Last, neither party can receive spousal support or survivorship benefits, like inheritances and retirement interests, from the other.

 

 

If you are considering an Annulment and have more questions, contact an experienced Bay Area family law attorney. 

What is Divorce Mediation?

San Francisco Bay Area clients looking for divorce mediation often come to me at the initial stages of divorce wondering what mediation looks like and what are the practical steps for mediation. Clients who are unfamiliar with the mediation process often have many questions about the process, the role of the mediator and what they can expect.  

Alternative Process
Mediation is an alternative form of dispute resolution and seeks resolve disputes without going to court. In San Francisco Bay Area, Mediation is popular because it allows clients to save money, stay in control, and save time. The mediation process is entirely voluntary, and any party can withdraw from this mediation at any time, for any reason.

Who is a Mediator?
A divorce mediator is generally a lawyer hired by all of the parties to the dispute and therefore does not represent any individual party. This means that a mediator cannot give legal advice to the mediating parties, recommend a certain course of action, or advocate on behalf of any one of the parties. However, in my practice, I explain and discuss legal concepts and statutory or case law with parties where appropriate to enable the parties to make informed choices. 

Confidentiality

What happens in mediation is confidential. All parties are required to sign a confidentiality agreement prior to beginning the mediation. This means that nothing that is said, done or prepared for the purpose of mediation can ever be used against any party in court or anywhere else. One important exception is that any Marital Settlement Agreement which is prepared as a result of the mediation is not confidential because it may need to be enforced with the Court. 

Control

In divorce mediation, the spouses make the decisions about their divorce. There is no judge or umpire. Typically, there is one mediator who is trained to facilitate communication between disputing parties and to guide the parties toward solutions. The mediator's role is to allow communication between the parties in a productive and cooperative environment.

Attorneys in Mediation
Depending on the type of case, attorneys may or may not be present in the mediation. There is no requirement that attorneys be present at mediation, regardless of whether attorneys have been retained or not. Attorneys may be present, may be available by telephone or may be available for later consultation with individual clients. 

Written Documents

At the conclusion of the mediation, the mediator may prepare a written

memorandum or agreement in accordance with the following:

a)     In a divorce mediation, the mediator may prepare and file the legal forms required for the parties to obtain a final judgment for dissolution of marriage, including a Marital Settlement Agreement.

b) Otherwise, at the Parties' request, the mediator may prepare a Memorandum of

Understanding, which is not intended to be a legally binding document.  

Moving Forward
A mediated dispute puts the clients in control of their own solutions and provides significant time and financial savings so that you can concentrate on what matters most – your health and your family.

Read more at Gordon Family Law's Divorce Mediation page to learn more about our divorce mediation services and click on the articles below to learn more now:

Divorce Mediation Process: How to Begin a Divorce Mediation.

Divorce Mediation