A Way to Secure Payment of Future Child Support: Court-Ordered Asset Deposit

A Way to Secure Payment of Future Child Support: Court-Ordered Asset Deposit

Divorced parents sometimes have a hard time collecting child support payments on a regular basis. The obligated spouse may or may not pay on time and may even go for extended periods of time without making the ordered payments. This can place a severe hardship on the spouse who shoulders the parenting responsibilities. Fortunately, California state law provides an option for that parent to force her ex-spouse to live up to his obligation.

The California Family Code provides that an obligated parent who is 60 days or more delinquent in child support payments may be required to place on deposit assets that will ensure timely payments. The assets are deposited with a court-designated entity and may ultimately be used to satisfy the amount in arrears. The obligated parent may also be required to pay fees and costs to the designated holder of the assets in connection with management or liquidation of the assets.

In making a request for an order requiring the deposit of assets, the requesting parent must declare under penalty of perjury that the obligated parent owes an amount equivalent to 60 days of payments. Once made, the court will provide notice to the obligated parent, as well as an opportunity to be heard. The court may also issue an immediate restraining order instructing the obligated parent not to dispose of any assets except through the normal course of business. The parent may also be required to document any extraordinary expenses after issuance of the notice.

To avoid an order to deposit assets or to prevent the liquidation of deposited assets, an obligated parent must prove that the non-payment of support was not willful and without good faith. He must also show that he did not have the ability to pay. He may also defend against an order by showing one of the following circumstances:

  • a change in child custody;
  • a motion pending for reduction of child support based on reduction of income;
  • illness or disability;
  • unemployment;
  • a serious adverse impact on members of his immediate family who reside with him that would outweigh the harm to the custodial parent and children; and
  • a serious impairment of the obligated parent’s ability to earn income.

The amount of assets required for deposit must be the equivalent of one year’s worth of child support payments or $6,000, whichever is less. If the obligated parent continues to be in arrears and fails to make a reasonable effort to catch up within a court specified time-frame, the designated holder of the assets on deposit may use the assets to pay the amount in arrears. This may involve the use of cash or the sale of assets such as personal property.

In many cases, the threat of filing a request for court-ordered asset deposit is enough to bring a delinquent ex-spouse around. Hopefully, that is most often the case. If you need assistance collecting child support payments, contact the attorneys at the Law Offices of Judy L. Burger. We have extensive experience in family law matters and can help you determine whether court-ordered asset deposit is the right approach. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

Can I Be Held Liable for Debts My Spouse Incurred if I Didn't Know about Them?

Can I Be Held Liable for Debts My Spouse Incurred if I Didn’t Know about Them?

Spouses sometimes come into a marriage with debt and also separately incur debt during the course of the marriage. Sometimes these liabilities are known by the non-incurring spouse, and sometimes they are not. The basic rule in California is that both parties are liable for any marital debt accumulated during the marriage but before separation. This is true whether or not one of the parties even knew it was incurred.

Debts owed by a party prior to marriage, known or not to the spouse, are not the debt of the non-incurring spouse. At the time of a divorce, community property—property accumulated during the marriage—is used to satisfy community debt. If there is not sufficient community property to satisfy the debt, then both parties are assigned a portion of the debt to be paid from their own funds post-divorce.

Couples can sign pre-nuptial or post-nuptial agreements that allow debts incurred during marriage to be treated as separate debts under certain circumstances. For example, they might agree that a debt incurred unilaterally, with only the incurring party’s income and liabilities qualifying for the debt, is the separate debt of that party. Such agreements must be drafted carefully to ensure they are legally defensible if that becomes necessary.

Debt incurred by a spouse after separation but before divorce is that spouse’s debt, and the other spouse is not liable from her separate funds or her share of community property. There is but one exception to this rule: when the debt is incurred to provide the “necessaries of life” for the debt-incurring spouse and the separation is not by formal agreement.

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer, especially if there are significant questions of debt and property ownership. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.

Can My Child Stay on My Spouse's Health Care Coverage after Divorce?

Can My Child Stay on My Spouse’s Health Care Coverage after Divorce?

The divorce of a child’s parents does not affect that child’s right to maintain health care coverage under one of the parent’s insurance plans. In fact, California law prohibits an employer or insurer from denying enrollment or coverage for a child based on certain outcomes of a divorce. Specifically, coverage may not be denied because the child is not claimed as a dependent for tax purposes or the child does not live with the parent or within the insurance coverage area.

Typically, as part of a divorce involving children, a court will include an order that one parent or the other maintain or provide health insurance coverage for the children, provided that the insurance is available at a reasonable cost. The amount that parties pay for insurance for themselves and their dependents (even new spouses and stepchildren) is an expense that is factored into child support calculations.  

Parents who have been ordered to maintain health insurance for children must provide the other parent with the health insurance information. Conversely, the parent not obligated to provide coverage must advise the obligated parent whether or not she has health insurance through her employer or other group insurance coverage. An obligated parent who is paying child support through a local child support agency (“LCSA”) must also provide documentation to the LCSA of such coverage.

California law also requires courts to include in their child support orders a provision that requires the parent providing coverage to affirmatively seek the continuation of coverage when a child reaches a disqualifying age. Such continuation, however, must be pursuant to other provisions of law that require continued coverage if the child is unable to work due to a physical or mental disability or is otherwise primarily dependent on the parent for support and maintenance.

If you want to learn more about health insurance for children of divorced parents or child support matters in California, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.

 

Can I Be Ordered to Pay Attorney's Fees for My Spouse If I Can't Afford It?

Can I Be Ordered to Pay Attorney’s Fees for My Spouse If I Can’t Afford It?

The cost of hiring an attorney for representation in a divorce can range from a reasonable sum to quite expensive depending on the complexity of the case and whether the parties cooperate with one another. For some parties to a divorce, however, their legal fees may be shifted to the other party. California state law provides for the court to order one party to pay the other’s attorney’s fees or costs under certain circumstances.

A foundational requirement for the court to consider when ordering such payments is whether a party “has or is reasonably likely to have the ability to pay.” The law also says that the court “shall not impose a sanction . . . that imposes an unreasonable financial burden on the party against whom the sanction is imposed.” Regardless, then, of the reasons that a party may be found liable to pay the other’s attorney’s fees, if he cannot afford to pay, the court is restrained from issuing such an order.

An order to pay another party’s fees is usually based on a disparity of income between the parties. California Family Code § 2030 imposes a duty on the court to “ensure that each party has access to legal representation.” Accordingly, the court may order a party with sufficient resources to pay the fees of the party with insufficient resources.  

The law also states that a party may be ordered to pay based on how the “conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” As an example, a party who refuses to engage in settlement discussions, files numerous and frivolous motions, and is otherwise uncooperative may be ordered to pay the fees and costs of his soon-to-be ex-spouse.

The law provides that before making an award, the subject party will be given due notice and an opportunity to be heard on the matter. In addition, the court is required to consider all of both parties’ “incomes, assets, and liabilities” before ordering a party to pay.

A party against whom an order has been issued may only pay the fees and costs from his own property or income. In a divorce, assets are deemed either community—that is—owned equally by both, or separate—owned by one or the other. A party ordered to pay must do so from separate assets or from his share of the community assets.

If you are facing a divorce proceeding, especially one that promises to be contentious, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are well-versed in difficult divorce proceedings and what it takes to win an award of fees and costs. Call today to see how we can help you: (415) 293-8314.

How a “Typical” Divorce Case Proceeds

How a Typical Divorce Case ProceedsBeing a party to a divorce proceeding is no walk in the park. The emotional toll of ending a relationship is enough for it to qualify as one of life’s least desirable experiences. Actually navigating the divorce process through the court system can also take its toll, but the state does provide a framework that allows for amicable or adversarial proceedings, depending on the desires of the parties.

Naturally, a divorce case begins with a decision by one or both parties to a marriage that the union should end. At this, and any other point in the process, the parties are free to mutually agree to terms of the divorce, including allocation of property, child support and custody, and spousal support. In this best of circumstances, the parties can file the appropriate documents with the court and seek a divorce order reflecting their mutual agreements. 

Whether or not mutual agreement is reached, the divorce must be initiated by the party seeking the divorce (called the petitioner) filing a petition with the appropriate court. The petitioner must also have a copy of the petition independently served on her spouse. The responding party then may file a response with the court within 30 days of having been served with the petition. Just as with the petition, the response must be independently served on the petitioner. 

After the proper filing of the petition and response, the parties will exchange financial documents that show their assets, such as money and property, as well as their earnings. Assets attained during the marriage are normally considered to be marital property—that is—owned by both parties and subject to equitable distribution. Assets owned by a party prior to the marriage or attained after separation are usually considered the separate assets of that spouse. 

If the parties have not reached a mutual agreement for the terms of their divorce, the court will hold a hearing to allow both sides to present their views of how the assets should be divided, whether spousal support should be paid, custody plans, and child support for minor children. The court will ultimately issue a decree officially ending the marriage and spelling out the terms of the divorce. 

The process is pretty straightforward, but it can become very convoluted. Bitterness and anger often prompt excessive legal wrangling. In addition, complex financial issues, such as business and other asset valuation, can complicate the proceedings. 

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.