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California law empowers courts in divorce cases to order that one spouse pay the other monthly support. These support awards are designed to help the spouse receiving them meet monthly expenses and maintain a standard of living similar to the one enjoyed by the spouses during the marriage. As a recent case out of California’s Fourth District Court of Appeals makes clear, courts have a fair amount of power to decide where to set the support level and whether or not to change it down the road.

dollar signHusband and Wife separated in 2009, following some 18 years of marriage. The couple had two children, who were adults by the time the Fourth District took up the case. A trial judge granting their divorce ordered Husband to pay Wife more than $2,700 in spousal support per month and to maintain a $400,000 life insurance policy payable to Wife in the event of his death. The court further explained that Wife was expected to become self-supporting as soon as possible.

Husband later went back to court and convinced the judge to reduce the support award to about $2,000 per month. The judge also decreased the required life insurance coverage to $250,000. That was largely because Wife had become fully employed and was receiving nearly $800 per month in Husband’s pension benefits. The court declined, however, to further reduce the support and insurance requirement based on Husband’s claim that he’d been making payments on his daughter’s student loans. Wife asserted that it was Daughter who was paying some $300 per month on the loans.

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If you’ve ever been involved in a court case in California, you may already know that the state judiciary system is backed up. In an effort to improve efficiency, the judiciary has devised a program in which non-judge “court commissioners” act as temporary judges, who are empowered to issue certain rulings in divorce and other cases. As a recent case out of California’s Fourth District Court of Appeals makes clear, however, both parties to a divorce case have to agree to have a commissioner hear the case in order for a commissioner’s decision to be enforceable. The Court called that case “a prime example of the harsh consequences that result when a commissioner neglects, at the outset of the case, to obtain the parties’ consent.”

gavelHusband and Wife were married for about eight years and had one child before separating in 2014. The couple later went before a court commissioner, who was charged with temporarily resolving issues related to spousal and child support, custody, and visitation. Following a hearing, the commissioner issued temporary orders in favor of Wife. When the spouses went back to court three months later, the commissioner asked each of them to sign a stipulation stating that they agreed to have their case heard by the commissioner and to be bound by her decisions. Husband declined, noting that the commissioner had already ruled against him.

The commissioner nevertheless proceeded with the case, finding that Husband and Wife had implicitly agreed to use the commissioner because they participated in the previous hearing and didn’t challenge her role in the proceedings at that time. She later issued a second judgement in Wife’s favor on issues related to the divorce.

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Generally, divorcing spouses are supposed to split their home and other community property under California law. When one spouse lives in the home alone after the couple separates and before they’re officially divorced, however, he or she may need to compensate the other spouse for the exclusive use of the property. These so-called “Watts” credits were the subject of a recent case in California’s Second District Court of Appeals.

for rent signHusband and Wife separated in 2013, following some 30 years of marriage. Wife lived alone in the family home for nearly two years following the separation and through the course of a heated trial. A trial judge eventually awarded the home to Husband and ordered Wife to leave the property. In exchange, Husband was ordered to pay Wife nearly $260,000 for her share of the home. The court reduced that amount by $145,000, which it said was the value of her exclusive use of the home for the time that Wife lived there alone after the split.

The trial court also said that Husband should be credited for the more than $11,000 in loan payments on the home that he made after the separation. That compensation is what California courts call an “Epstein” credit.

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Sometimes it’s not just the parents involved in child custody and visitation disputes after a divorce. California’s Fifth District Court of Appeals recently considered a grandparent’s request for a court order giving her the right to visit with her grandchildren. As the court explained, state law generally presumes that the decision should be left to the parent with custody of the kids.

tricycleMother and Father were married for nearly seven years before they separated in 2014 and later divorced. They had two children – ages four and six at the time of the split – and Mother also had a 14-year-old daughter from a previous marriage. The couple separated shortly before Husband was charged with molesting the oldest daughter, a crime for which he was convicted and sentenced to eight years in prison. A trial judge gave Wife sole custody of the children and didn’t allow Husband visitation.

About a month after the divorce was finalized, Father’s mother (Grandmother) asked the court to grant she and her husband (Grandfather) visitation time with the kids. She said Wife hadn’t allowed them to see the children after she found out about the molestation. The court – after a hearing – denied the request to order visitation, instead leaving it up to Mother to decide whether Grandparents would see the kids. The court explained that there’s a presumption against court-ordered grandparent visitation in cases in which the parent with sole custody opposes it. In this case, Wife said she didn’t want Grandparents around the children because they had continued to support Father after he was charged with the crime.

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California courts look at a number of factors when faced with child custody questions related to one parent’s decision to move. As the state’s First District Court of Appeals recently explained, one of those factors is the kids’ ties to their existing, local community. That includes their participation in extracurricular activities.

baseballMother and Father had two children before they divorced in 2012. A court initially ordered them to share custody of the kids. Father went back to court three years later, however, claiming that Mother was refusing to take the kids to little league and other after-school activities. Mother moved from Fairfield to San Francisco while that request was pending. She separately asked the court for permission to have the children throughout the week. She accused Father of abusing the children and said his animosity toward her had gotten in the way of the kids’ best interests.

Following a hearing on the matters, the trial court granted Father full custody of the children and offered Mother weekend visitation twice a month. The trial judge said Mother moved to San Francisco with the children without adequately discussing the situation with Father. It noted that the 50-mile commute to and from their school in Fairfield was detrimental to the kids and said Father was more supportive of their involvement in the local community, including through extracurricular activities.

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Marital settlement agreements can be useful in many divorce cases because they allow divorcing spouses to decide for themselves how some or all of the issues will be resolved, instead of leaving them for a judge. As a recent case out of California’s Third District Court of Appeals makes clear, however, it is important to make sure that you have all of the information you need in front of you before you sign an agreement. That’s because they’re tough to undo.

Wedding RingsHusband and Wife separated in 2009, following some 26 years of marriage in which the couple had at least one child. Husband went to medical school during the marriage and later became a doctor. Wife was in school pursuing a master’s degree in education at the time of the split. The couple eventually entered into a marital settlement agreement – approved by a court in 2011 – in which Husband pledged to pay Wife $3,750 per month in spousal support. The agreement said Wife’s goal was to become self-supporting and provided that the support payment could potentially be modified starting in 2012.

Wife went back to court in 2012, asking a judge to set aside the 2011 judgment incorporating the settlement agreement. She alleged that Husband had concealed payments to a retirement account during the negotiations leading up to the agreement. The trial court found no evidence to support that claim. It also said Wife was too late. State law required her to seek the set aside within one year from the date on which she knew or should have known about Husband’s alleged fraud. In this case, Wife asked for the set aside nearly a year after the judgement was entered and more than a year after the couple reached the agreement.

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There are a number of factors that go into a court’s decision about whether to order one divorcing spouse to pay the other spousal support. One of them is the receiving spouse’s age. The other is his or her ability to work. So what happens when the person is old enough to stop working? California’s Fourth District Court of Appeals recently explained that a spouse has the right to retire and may be able to get spousal support if he or she exercises that right.

Wedding RingsHusband and Wife separated in March 2014, following some 13 years of marriage. Husband was 68 years old at the time, and Wife was 66. Both spouses had retired from their jobs as a firefighter and a personal assistant in a real estate office, respectively. Although Wife was also a license real estate agent, she never used her license. The court said the spouses agreed that it was Husband who had urged Wife to retire so that the two could travel. A trial court judge eventually ordered Husband to pay Wife $4,000 per month in spousal support.

Affirming the decision on appeal, the Fourth District said Wife had the right to retire during the marriage and to remain retired following the divorce. State law instructs family courts to consider a list of factors in deciding whether to award spousal support and how to set the award. Among those factors are the spouses’ ages and the goal that each spouse had in becoming self-supporting. In this case, the Court said the trial judge didn’t abuse his discretion by simply deciding that Wife’s age outweighed the need for Wife to become self-supporting.

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Marital settlement agreements are an important legal tool for divorcing spouses. These binding contracts give a couple the chance to resolve many of the issues related to a divorce without leaving them for a judge to decide. As a recent decision out of California’s Fourth District Court of Appeals makes clear, however, it is important to understand that these agreements are binding. Once you enter a settlement agreement, it’s going to be tough to get out of it.

golden penHusband and Wife separated in 2010, following nearly 18 years of marriage. They later entered into a marital settlement agreement resolving issues related to their divorce. Two years later, however, Wife went back to court and asked a judge to set that agreement aside. She said Husband didn’t disclose his assets and never properly explained to her the extent of a family business. Although she primarily speaks Spanish and has a hard time understanding English, Wife said no one translated the document for her or otherwise explained to her what she was getting into by signing it.

The family court sided with Husband, finding that Wife had waited too long to ask for the agreement to be set aside. State law required her to make the request within six months from the time the court granted the divorce and incorporated the agreement, according to the judge. To the extent she was alleging fraud, the court said she had one year from the time she discovered the fraud. The court also noted that Husband and Wife used a third-party mediator to help them reach the agreement and that they met with the mediator on at least two occasions. The family judge explained that the “use of a mediator, multiple meetings, terms that include her receiving indefinite spousal support and child support, her receipt of a substantial equalization payment, and notarization of her signature, all undercut her claim that she was forced to sign a one-sided agreement.”

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If you don’t like a ruling from a trial court in a divorce case, you have the right to appeal. The problem, however, is that appeals courts take a fairly deferential stance in those cases. As the Fourth District Court of Appeals recently explained, appeals courts review trial judge decisions for an “abuse of discretion.” In other words, a judge must generally have abused the fairly broad discretion he or she is afforded in order for a decision to be overturned. That makes it vital that a person considering a divorce seek the advice and counsel of an experienced attorney as soon as possible in the process in order to put a strong case before a trial judge.child

Husband and Wife were married for some nine years and had two children before separating in 2009. The couple agreed to share joint legal and physical custody of the kids and split expenses. A court eventually issued a divorce judgment encompassing that agreement. That set off what appeared to be a series of disputes between the former spouses about how to parent the kids.

Additional litigation ensued, and Wife eventually asked for greater visitation rights, child support, and spousal support. In response, Husband asked a court to give him sole physical custody of the children. He argued that Wife wasn’t using all of her visitation time with the kids and said she had violated the terms of the divorce judgment by proposing to change their daughter’s therapist without consulting him. He also said that the switch to full custody would be in the children’s best interests. The trial court disagreed and ordered the spouses to continue with joint custody. It also made Husband’s home the primary physical residence for the kids.

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The family home is often a source of much debate in California divorce cases. State law generally treats real estate obtained by one or both spouses during the marriage as community property to be divided equally upon divorce. Spouses have the power, however, to make their own arrangements via settlement agreements. Courts also have significant authority to enforce those agreements, including by forcing the sale of a home. California’s Second District Court of Appeals recently took up one of those cases.house

Wife filed for  divorce from Husband in September 2010, following 11 years of marriage. She’d purchased a $640,000 home during the marriage. Typically, that home would be considered community property to be split evenly between the spouses in the event of divorce. As part of a marital settlement agreement, however, Wife agreed to give Husband the property. She signed a quitclaim deed transferring the property to Husband and agreed to pay him $2,500 a month in arrearages on the home mortgage. Husband was responsible for removing Wife’s name from the mortgage, making the monthly mortgage payments, and paying property taxes. The agreement also stated that both parties intended for the home to be sold.

A trial court granted the divorce and ordered the former spouses to abide by the terms of the agreement.

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