Has your ex disappeared when they were supposed to sign a QDRO or the interspousal deed to your house?

Now that your divorce is finalized, many clients think the work is over. Unfortunately, there are typically a few loose ends about ownership documents for property and retirement.  Sometimes the other party does not want to cooperate in signing these documents because they are tired, angry, or just difficult. 

You may need to ask the Court for help in getting the documents signed.  

If the Court has already made an order for the documents to be signed (in the divorce judgment) and your ex has disappeared, the next step is to ask for an Elisor to be appointed. An Elisor is authorized by California Civil Code Section 128 to act as the party and sign on their behalf.  The Elisor is typically the Clerk of the Court. 

To get the Court to make an Elisor order, you must first attempt to contact your ex spouse and ask them to sign the required documents. If they ignore you or say “NO” despite a court order that says they must sign the documents, then you can proceed by filing a Request for Order that asks the Court to sign on their behalf.

Since this will likely be a post-judgment motion, you must properly serve your Ex in person.  If you have trouble locating your ex you can ask the Court to allow you to serve by publication or post.

After you obtain an order appointing the Clerk to sign on behalf of your Ex, you must then provide the document to the Court for signature and bring with you a notary so that the document has an official record.

If you are looking for help with signing an order after judgment, please feel free to reach out to amanda@gordonfamilylaw.com. 

Can my ex force the sale of our house during the middle of our divorce?

The sale of a family home is typically an issue reserved for trial. However, in some limited cases the court may permit the sale of an asset to avoid unreasonable market or investment risks to the community estate (Family Code 2108).

If you are seeking to sell the house before a trial date (meaning that you want to sell the house in the middle of the dissolution process), we encourage you to seek out expert advice to determine whether a court would be likely to grant that motion.

Can a foreign domestic partnership be dissolved in California?

Unfortunately, no. A foreign domestic partnership which is not "substantially equivalent" to a CA domestic partnership cannot be dissolved in CA and is not recognized for purposes of property and support. 

Will support be reduced when my ex retires at age 65?

Experienced Bay Area Family Law clients will tell their clients that retirement constitutes a change in circumstances. 

A supporting spouse's attainment of retirement age typically constitutes a material change of circumstances for purposes of a motion to modify a spousal support order, depending on the circumstances of a given case..

It has been found that there is no material change in circumstances occurred when the obligee became old enough to access a retirement fund without penalty, where the accessibility and possible increase in value of the obligee's share of the retirement accounts were part of the parties' expressed reasonable expectations in entering the stipulated judgment, the retirement accounts were divided equally between obligor and obligee, and by the time of the hearing the obligor was also old enough to access his account without penalty; since the marital settlement agreement, the obligee had become unable to work due to illness, and the obligor's income had increased. In re Marriage of Dietz, 176 Cal. App. 4th 387, 97 Cal. Rptr. 3d 616 (4th Dist. 2009), as modified, (Sept. 2, 2009)

I am disabled and on SSDI. Do I have to pay child support?

Experienced Bay Area family law attorneys will tell their clients who are on Social Security Disability Insurance, that they may have to pay child support.

If you are receiving benefits, your child will be entitled to receive your derivative benefits, and you may be required to pay additional child support on top of those benefits. 

Often, dependents of disabled adults qualifying for certain federal disability payments qualify for direct payments. These payments are paid to the custodial parent, even if the custodial parent is not the parent qualifying the child for the disability-related payment.

Fam C § 4504. provides for notification about benefits as well as how such payments are considered within the calculation of child support.

Here is Fam C § 4504: 

Fam C § 4504. (a) If the noncustodial parent is receiving payments from the federal government pursuant to the Social Security Act or Railroad Retirement Act, or from the Department of Veterans Affairs because of the retirement or disability of the noncustodial parent and the noncustodial parent notifies the custodial person, or notifies the local child support agency in a case being enforced by the local child support agency pursuant to Title IV-D of the Social Security Act, then the custodial parent or other child support obligee shall contact the appropriate federal agency within 30 days of receiving notification that the noncustodial parent is receiving those payments to verify eligibility for each child to receive payments from the federal government because of the disability of the noncustodial parent. If the child is potentially eligible for those payments, the custodial parent or other child support obligee shall apply for and cooperate with the appropriate federal agency for the receipt of those benefits on behalf of each child. The noncustodial parent shall cooperate with the custodial parent or other child support obligee in making that application and shall provide any information necessary to complete the application.

(b) If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act or Railroad Retirement Act, or by the Department of Veterans Affairs because of the retirement or disability of the noncustodial parent and received by the custodial parent or other child support obligee shall be credited toward the amount ordered by the court to be paid by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid. Any payments shall be credited in the order set forth in Section 695.221 of the Code of Civil Procedure.

(c) If the custodial parent or other child support obligee refuses to apply for those benefits or fails to cooperate with the appropriate federal agency in completing the application but the child or children otherwise are eligible to receive those benefits, the noncustodial parent shall be credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child or children in the amount of payment that the child or children would have received that month had the custodial parent or other child support obligee completed an application for the benefits if the noncustodial parent provides evidence to the local child support agency indicating the amount the child or children would have received. The credit for those payments shall continue until the child or children would no longer be eligible for those benefits or the order for child support for the child or children is no longer in effect, whichever occurs first. [Amended by Stats. 2004, Ch. 305, Sec. 4. Effective January 1, 2005]

If you have questions about child support, please email me at amanda@gordonfamilylaw.com