Generally, characterization of a term insurance policy (i.e. life insurance, homeowners insurance, etc.) depends on the source of funding of the premium for the final term of the policy (Marriage of Burwell, 221 Cath at 17, 164 CR3d at 712; Minnesota Mut. Life Ins. Co v. Ensley (9th Cir 1999) 174 F3d 977, 983 (applying California Law)). When the final premium is paid solely with community property, the proceeds of the policy are community property (Logan, 191 Cal. App. 3d at p. 321). Conversely, when the separate estate pays for the final premium with no help from the community, the proceeds are a separate asset. For example, this issue may arise when a party purchases a house before marriage (separate property) and then the separate property house burns down in a fire during the marriage. If the homeowners insurance policy was paid with community earnings, during marriage, the homeowners insurance policy proceeds should be deemed community property. This is not legal advice and you should always consult a lawyer. Call Morales Law at (805) 845-5405 for a free consultation with a featured Santa Barbara Divorce Lawyer.
IRMO Valerie and Louis G, the court affirmed that within the meaning of family code section 6203 (domestic violence statute), a person who responds reasonably to an aggressor does not commit abuse. In re the Marriage of Valerie and Louis G. (Cal. App., May 16, 2017, D558422) If you have been involved in a domestic dispute, call Morales Law today for a free consultation (805) 845-5405.
In Re Marriage of Olson Changes Procedure For Seeking Modification of Child Custody and Child Support After Default
The Second District Court of Appeal recently held that a mother seeking a modification of child custody and child support, after she defaulted and did not file a response to the divorce action and judgment was entered against her, had standing to seek the modification. This is in contrast to prior cases which ruled the default precluded standing to the defaulted party. Under Olson, a party who has defaulted may file a request for order to modify child custody and/or child support. See In re Marriage of Olson, 238 Cal. App. 4th 1458 (2015). Call Morales Law today for a free consultation into your family law case (805) 845-5405.
If your family law judgment does not have an interest on late payment clause, can you collect interest? "Part of a judgment of dissolution which awards money in lieu of an in-kind division of non-monetary community property is a money judgment on which interest accrues from the date of its entry." IRMO Pollard (1988) 204 Cal.App.3d 1380, 1382. In short, if you have an equalizing payment as part of your divorce judgment, you may collect interest from the date of the Notice of Entry of Judgment. Interest accrues a the rate of 10 percent per year (CCP § 685.010(a)). Interest commences to accrue on a money judgment on the date of entry of the judgment (CCP § 685.020(a)). If a money judgment is partially satisfied, interest ceases as to the part satisfied on the date the part is satisfied (CCP §685.020(c)). The date a money judgment is satisfied in full or in part is the earliest of the following times: (1) the date satisfaction is actually received by the judgment creditor. (CCP §685).020(d)(1)). If you are waiting for a delayed payment, or received a delayed payment in a family law case, you may be entitled to interest. Call Morales Law today for a free consultation. (805) 845-5405.
California Family Law Section 2339(a) states that no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first. Thus, in California, you cannot get divorced prior to six months after service of the initial pleadings. This is the earliest date you can be divorced, and most divorce cases take longer. If you have an agreement prior to six months, you can can still prepare the final paperwork, but the divorce will not be final until the six month period. If you have questions about divorce, call Morales Law for a free consultation (805) 845-5405.
Introduction of New Bill In State Legislature Looks To Change Age Requirements For Children Who Wish To Express A Custodial Preference
Currently, California Family Code Section 3042 states that if a child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall permitted to do so, unless the court determines that doing so is not in the child's best interest. There is a new bill that is being introduced in the California State Legislature which would change the age requirement from 14 to 10 years of age. California Family Code Section 3042 does currently allow children under 14 to express their preference, if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation and if the court determines that is appropriate pursuant to the child's best interests. But lowering the age requirement will significantly impact the age children are allowed to tell the court what custody arrangements they want. We will see if the legislature passes this new amendment. If you have a child custody issue call Morales Law today for a free consultation (805) 845-5405.
When child or spousal support is at issue, one party may voluntarily make less money to lower the support payment, or not work so you have to pay more in support. Family Code Section 4331 provides a solution, a Vocational Examination. A Vocational Examination is where an expert meets with a party, looks at their employment history, physical capacity, employment history, etc and makes an opinion as to how much a party could or should be earning, if the party made their best efforts to be fully employed. The court can "impute" this income to that party, leading to a more accurate support calculation. If you have questions about Vocational Exams, child support or spousal support, call Morales Law today for a free consultation (805) 845-5405.
Is bonus or overtime pay considered in a child or spousal support order? Typically, the court will consider all income from any source derived. But, if bonus and overtime income fluctuates, the court may impose what's know as a Smith-Ostler order. A Smith-Ostler order is in addition to a base spousal or child support amount which is determined based on a party's base pay. In addition, a court can order a set percentage of bonus or overtime pay to be paid to the party receiving support. Typically, this percentage equals 13% of the bonus or overtime pay. Consider this example, husband earns a base salary of $25,000 per month, and is awarded bonuses at the end of each fiscal year depending upon the company's sales and revenue. This bonus is not a set amount each year. Under Smith-Ostler, a court can set a base amount of support based upon Husband's $25,000 base salary, and, in addition, order Husband to pay 13% of any bonus he receives at the end of the year to Wife. This order will typically require Husband to provide financial disclosures at the end of each to prove the amount of the bonus received. If you have questions about bonus income, overtime income, child support, spousal support or Smith-Ostler orders, call Morales Law today for a free consultation at (805) 845-5405.
The IRMO LaMusga court stated, "we conclude that just as a custodial parent does not have to establish that a planned move is “necessary,” neither does the noncustodial parent have to establish that a change of custody is “essential” to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody. The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." If you need a case to cite, consider reading In In re Marriage of Burgess (1996) 13 Cal.4th 25, 28-29, where the court held, "that a parent seeking to relocate after dissolution of marriage is not required to establish that the move is “necessary” in order to be awarded physical custody of a minor child. Similarly, a parent who has been awarded physical custody of a child under an existing custody order also is not required to show that a proposed move is “necessary” and instead “ ‘has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.’ (Fam. Code, § 7501.)” (Id. at p. 29.) If you have a potential move away custody case, call Santa Barbara divorce lawyers Morales Law for a free consultation. (805) 845-5405.
There is some case that supports the position that if you are found guilty of contempt for failure to pay child support, you may not request the court modify that same child support order. As stated by one judge in the 1930s, "No party to an action can, with right or reason, ask the aid and assistance of a court in hearing his demands while [***5] he stands in an attitude of contempt of its legal orders and processes . . . . 'No rule of law seems more widely prevalent or better established than that a court whose authority has been put to naught will extend no favors or privileges to the party in contempt until he has acknowledged its authority by purging the offense.'" Schubert v Superior Court (1930) 109 Cal. App. 633. Thus, if you have been found in contempt of court due to failure to pay child support, the court may deny your request to modify that child support order. If you have a questions about child support, call Morales Law today for a free consultation (805) 845-5405.