Help! My spouse just served me with divorce papers.  How can I pay for my divorce? The short answer is if you have the need and the other side has the ability to pay your fees, you can have your spouse pay your attorney fees and costs.  It is more complicated than that.  Below are some legal principles you can take to the bank:

Under California Family Code section 2030, a fee award is to ensure a party has sufficient resources to adequately and properly litigate the controversy and to implement public policy favoring “a parity between spouses in their ability to obtain legal representation” (equalizing litigating strengths). (Cal. Fam.Code, §§ 2030(a), 2032; Marriage of Sullivan (1984) 37 Cal.3d 762, 768; Marriage of Braud (1996) 45 Cal.App.4th 797, 827 (citing text); Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056; see also Marriage of Cheriton (2001) 92 Cal.App.4th 269, 318 [“There is no question that access to the family law courts through adequate representation is critical”].)

Therefore, the court’s decision on a request for § 2030 fees must be based upon (1) an assessment of the parties’ respective income and needs, (2) whether there is a disparity in their respective access to funds to retain legal counsel, and (3) whether one party is able to pay for legal representation of both parties. (Cal. Fam.Code, § 2030(a)(1), (2).

Further, both the making of the award and its amount must be “just and reasonable under the relative circumstances of the respective parties.” (Cal. Fam.Code, § 2032(a); Marriage of Braud, supra, 45 Cal.App.4th at 827 (citing text); see Marriage of Cryer, supra, 198 Cal.App.4th at 1056 [§ 2032 requires court, among other things, to engage in broad analysis of parties’ relative circumstances.].)

In determining what is “just and reasonable” under the parties’ “relative circumstances,” courts must consider the need for the award to enable each party (both the applicant spouse and the other spouse), to the extent practical, to have sufficient financial resources to adequately present his or her case, taking into account to the extent relevant the circumstances of the parties described in Family Code § 4320  (Cal. Fam. Code, § 2032(b); see Marriage of Keech (1999) 75 Cal.App.4th 860, 867-868; Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824.)  In short, the proper legal standard for determining an attorney fee award requires that the cost of the proceedings be apportioned equitably between the parties given their relative circumstances. (Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.)

Two recent cases, In re Marriage of Morton [(2018) 27 Cal. App. 5^th 1025] and In re Marriage of Ciprari [(2019) 32 Cal. App. 5^th 83], have interpreted Section 2030 to be mandatory when the court finds both a disparity in access to funds and a disparity in ability to pay.  In Morton, the court states that the word “shall” used in the statute (“the court shall make an order awarding attorney fees and costs”) is mandatory rather than permissive.  The statute was amended in 2004 to delete the word “may” and insert the word “shall”, four times.  (In re Marriage of Morton, supra, 27 Cal. App. 5^th at 1049.)  In 2010, the statute was amended again to include text stating “the court shall make an order awarding attorney fees and costs”.  Currently, § 2030(a)(2) states:

When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward. [italics added]

In Morton, the court concluded that due to these changes in language, the “broad discretion” referred to in judicial decisions referencing the earlier versions of Section 2030 no longer exists.  The court interpreted the word “shall” to mean that the provision is now mandatory, and stated that “[w] hen considering an application for attorney fees, the trial court must comply with the mandatory provisions of the statute because discretionary authority “must be exercised within the confines of the applicable legal principles.”  (In re Marriage of Morton, supra, 27 Cal. App. 5th at 1050.)

In determining the amount of a § 2030 need-based fees and costs award, trial courts must apply the same statutory standards governing the threshold decision whether to make the award—i.e., the court must consider what is “just and reasonable” under the parties’ “relative circumstances” and must base its determination on the parties’ respective incomes and needs, and “any factors affecting” their respective abilities (Cal. Fam. Code, §§ 2030(a)(2), 2032(a).)  As applied to the specific facts of each case, the primary focus is on what is “reasonably necessary” to adequately maintain or defend the proceeding. (Cal. Fam. Code, §§ 2030(a)(1), 2032(b); Marriage of Marsden (1982) 130 Cal.App.3d 426, 446; see Marriage of Keech (1999) 75 Cal.App.4th 860, 870 [abuse of discretion to order husband to pay wife’s attorney fees without making any inquiry into reasonableness of the fees; Marriage of Dick (1993) 15 Cal.App.4th 144, 167.)

Relative need and ability to pay are not the exclusive considerations in fixing the amount of a “just and reasonable” fee award. In determining a “reasonable” fee award, trial courts should also take into account such matters as the:

• nature and complexity of the litigation;
• amount involved;
• skill required and employed in handling the litigation;
• attention given;
• success of counsel’s efforts;
• the respective attorneys’ professional standing and reputation;
• intricacies and importance of the litigation;
• labor and necessity for skilled legal training and ability in trying the case;
• litigation costs already incurred and expected to be incurred through conclusion of the case; and
• time consumed.

(Marriage of Keech, supra, 75 Cal.App.4th at 870; Marriage of Braud, supra, 45 Cal.App.4th  at 827, fn. 30; see Marriage of O’Connor, supra, 59 Cal.App.4th  at 884.)

The upshot is – where the strictures of Family Code section 2030 are met, an award of fees is MANDATORY.

This can be a very fact driven inquiry.  You need to know your financial position and at the very least estimate your spouse’s position.  You have to file a motion to get fees.  Both sides will have to fill out an Income and Expense Declaration detailing – you named it – your income and expenses.  This will give the Court a window into the parties’ relative need and ability to pay fees in addition to the other pleadings you file.  The process can be overwhelming for someone who doesn’t have familiarity with family law.  The person looking to have their fees paid by their spouse is wise to consult with an experienced family law professional before filing a motion for fees.

Tanya had a child out of wedlock with Jose in Oakland. The father filed a paternity action.  Then the father’s mother Lupita filed to be part of the lawsuit. A few years later Jose died of a drug overdose and the grandmother tried to establish her visitation rights, over Tanya’s objection.  Both women did not get along and Lupita’s contact with the child only occurred during the father’s periods of supervised visitation when the grandmother was the court-appointed supervisor.

Does the grandmother have visitation rights?

In this situation, no.  A recent case, “Rich v. Thatcher” denied the grandmother’s claim to establish visitation rights. As background, the Supreme Court has said that the care of a child primarily rests with the parents.  A“fit parent” has a federal right under the U.S. Constitution to make decisions on behalf of their children. This is the case even if it may not be popular with other family members. Further, the law presumes that a “fit parent will act in the best interest of the child.” However, a claimant – here, the grandmother – may overcome this rule by showing that denial of visitation would be “detrimental to the child.” However, the grandparent has to provide an overwhelming, but not 100%, amount of evidence to support their case.

In the end, the grandmother could not prove that denial of visitation would be detrimental to the child by this level of evidence. The court’s decision was based on the fact that the grandmother failed to show that she had a “deep and abiding relationship” with the child. Her only interactions with the child were when she supervised the father’s visitation periods. In addition, the court had “great concern” over the veracity of the grandmother’s evidence.

Since the mother of the child was not unfit to parent and the grandmother was unable to meet her level of proof, her claim for visitation was denied. If you are a grandparent seeking to establish visitation with your grandchild, be mindful that the required proof is a tough standard to meet. Be sure to prepare your case with a family law legal professional.

The much-anticipated IRS rules have “come out” officially. Now married same-sex couples can file their federal tax returns as “married” regardless of what state they live in. This is really big, since the majority of states still do not recognize same-sex marriage.

All federal tax laws involving marriage may save same-sex couples thousands of dollars or require them to pay more on such things as: the value of their spouse’s health insurance, estate and gift taxes, and retirement plans.

This means that same-sex couples may be paying much less in taxes and/or receiving a refund from prior years. In terms of savings, it depends on the couple. Each spouse’s earnings, employment status, and other factors determine whether these couples will save or pay more in light of the IRS rules. Generally, a couple’s tax liability will be less if one spouse makes much less than the other or if they are unemployed. Couples where both spouses have high incomes will probably result in paying higher taxes if they meet a certain threshold.

Other benefits include retroactive refunds for couples that would have received a refund had they been able to file jointly. Same-sex couples where one spouse is covered by the other spouse’s employer’s health plan can claim a refund on the income taxes spent on the value of the coverage. They can also claim a refund on the portions they paid on the premium.

Additionally, like opposite-sex couples, married same-sex couples may defer paying federal estate taxes. Another key benefit is that the surviving spouse of a same-sex marriage will be the default beneficiary on all qualified retirement plans. Whether or not this will be retroactive has yet to be determined though.

Same-sex couples residing in a state that recognizes their marriage can file both a federal and state tax return jointly. Unfortunately, for those couples residing in non-recognition states this will be more complicated. First off, it is unclear depending on the state as to how states recognize any couple’s tax return. For example, some states require that a taxpayer’s state tax return mirror their federal tax return. This will lead to a more inconvenient process for same-sex couples in those states.

A person is wise to consult a tax professional to learn more about the implications of the IRS ruling. A family law professional can provide some guidance on the general ramifications of the recent same-sex marriage Supreme Court cases.

You are served with divorce papers in the San Francisco Bay Area.  You have custody of the kids but are afraid of losing them, don’t have money for a lawyer and can’t pay your bills while your spouse is earning $120,000 a year.  What can you do to survive the divorce process personally and financially?  Apply for “temporary” orders.  Here are the top choices for orders and how they can work for you.

 It is often the exception, not the rule, that the parties parted amicably, are both self-supporting, able to finance the litigation, and agree on custody/visitation and child support.  All too many separations are fraught with resentment – the parties need a court order to ensure neither will take unfair advantage of the other by cutting off support, secreting property, or absconding with the children. In extreme situations, immediate protective relief may be essential to ensure the physical safety of a party and/or the children.

A person can seek a variety of interim, “temporary” orders (also referred to as “pendente lite” relief) in a divorce.  The purpose of a lot of these orders is to maintain the “status quo” until the divorce can be settled.  Some orders, labeled “protective orders,” are specifically designed to ensure the safety of a party and children in domestic violence situations.

Temporary orders are appropriate when any of the following exist:

• There is actual or threatened physical or sexual abuse of a spouse, their children and/or other family and household members
  There is a dispute over child custody and/or visitation
• The spouse needs spousal support and the other party refuses to help voluntarily
• The children need financial assistance for their basic (child support) and/or extraordinary expenses (e.g., for medical/dental care, special education) and the other party refuses to help
• The spouse cannot afford to pay attorney’s fees and costs
• The family finances and community property estate are under the other party’s control and are at risk of being dissipated or at least separated from the client’s access to pay debts and expenses
• The spouse otherwise needs help paying community debts and living expenses while the divorce is happening

There are a dizzying array of temporary orders available.  Here are the top picks:

• Orders restraining assaultive conduct and harassment
• Dwelling exclusion and other “stay-away” orders
• Companion animal protection orders
• Firearm restraining orders
• Injunctive relief (specifying that a party do or don’t do something) as authorized in civil actions generally
• Temporary custody/visitation orders
• Property restraint orders, including orders regarding temporary use, possession and control of property and the payment of liens/encumbrances on that property.
• Nondisclosure orders, in UIFSA support enforcement proceedings concerning the address or other identifying information of a party, child, parent, guardian or other child caretaker.
• Child and/or spousal/partner support orders.
• Attorney’s fees and costs orders.

Every type of temporary order involves a certain type of process and set of laws.  The process of securing temporary orders can be overwhelming but essential to one’s literal or financial survival.  A person engaged in a divorce is wise to seek the help of a family law attorney to maneuver this tricky area of family law.

Recently, news outlets have posted stories on the domestic violence dispute between Jack White and his ex-wife, Karen Elson. After the couple filed for divorce last year, Elson obtained a temporary restraining order against White in fear for her safety and alleging that he was an unfit parent. It is important for survivors of abuse to know there are helpful resources out there to protect them from further abuse.

What is domestic violence exactly? It is defined as “abuse or threats of abuse when the person who is abused and the abuser are or have been in an intimate relationship.” An intimate relationship may include couples that are married or domestic partners, are dating or used to date, live or lived together, or have a child together. It also expands to those who are closely related by blood or marriage.

Domestic violence comes in many forms and is not always physical. It can be in the form of kicking, shoving, scaring, stalking, or being kept from freely going somewhere. Abuse can also be verbal, emotional or psychological.

If you believe you have been abused or feel scared for your own or your children’s safety, you have many options. You may want to consult with a domestic violence counselor or seek the advice of an attorney. You should contact an attorney who specializes in the key factors of your situation (i.e. immigration, custody issues, criminal charges, etc.). There are a variety of options you may use to obtain legal protection if you have been or believe you are under the threat of abuse.

Obtaining a restraining order is a common route used by survivors of abuse. However, there many types of restraining orders. Which one do you choose? If you are in an emergency situation, you may want to file a restraining order with a law enforcement agency, which may be obtained within twenty four (24) hours. However, an emergency restraining order (EPO) can only last up to seven (7) days. A temporary restraining order (TRO) can go up to about 20-25 days until the court hearing. TROs may be obtained by filling out paperwork detailing everything that has happened and why a restraining order is necessary. There are also “permanent” restraining orders and criminal protective orders.

Another option is that you may want to get a civil harassment restraining order depending on your circumstances. This is different from a domestic violence restraining order.  A domestic violence restraining order protects from abuse or threats of abuse from someone you have a close relationship with. A civil harassment restraining order broadens the “close relationship” aspect so you can be protected from someone you have a close relationship with or from more distant relatives, neighbors, coworkers, etc.

A person suffering from domestic violence is wise to seek legal help in dealing with their situation.  No one wants to be victimized by the legal system as well as by their abuser.

Miranda and Bob have a child together, Cory.  Miranda takes Cory and escapes from Bob because of domestic violence.  Miranda files a request for a domestic violence restraining order but the court grants Bob unsupervised visitation as part of the temporary restraining order.  Bob takes Cory during the first visit and leaves the country with Cory to Canada.  Miranda is at a loss at what to do.

California law provides Miranda with some relief.  Bob cannot leave the state with Cory without Miranda’s consent.  Effective January 1, 2013, the Legislature provides that the Court can freeze Bob’s assets while he has Cory abducted.  In other words, Bob can run, but he can’t run far without money.  The new law, SB 1206, which amends Family Code 3134.5, is a really great tool for parents who are trying to be reunited with their abducted children.

The problem of international abduction is great.  In 2010 the United States Department of State reported the international abduction of 2,488 children.  It can be very expensive and difficult to get the children back.  Efforts are often spread out on a state, local and federal level.  A parent who has had a child abducted by a another parent is wise to have legal counsel aid them in getting their child back.

SB 1206 focuses on international abductions but applies to any out of state abductions.

Father owned a Ferrari, flew off on chartered flights to the Caribbean and paraded himself on Facebook wearing flashy clothes and jewelry.  He did this while his estranged girlfriend and their child were living on general assistance.  Father failed to follow any court orders for paying child support and spousal support.  Father also failed to appear in court when his ex-girlfriend tried to enforce the orders – court date after court date.  The Judge even went so far as to issue a bench warrant to bring him back to court.  This pattern lasted for more than a year.  Does this sound contemptible to you?  Contempt is exactly what this is in the legal world and bringing a contempt charge is serious business.

A person can bring a contempt charge if they can prove a few basic facts:

(1) there was a court order;

(2) the accused person knew of the order;

(3) the accused person was able to comply with the order, and

(4) the accused  person willfully disobeyed the order.

Coursey v. Superior Court ((1987) 194 Cal.App.3d 147, 154) is a good case on this point.

Contempt has some criminal law aspects to it even though a party can prosecute a contempt in family law court.  The party bringing the charge must prove their case beyond a reasonable doubt.  A party guilty of contempt might be looking at a few days in jail and a fine.  The Court will continue to punish the losing party until they comply with the court order.

Who knows what will happen to Father.  The Court is still out.

Here is a story for the tabloids and the textbooks alike.  Kim Kardashian and New Jersey Nets player Kris Humphries had a 72-day marriage in 2011.  Kim wants a traditional divorce but Kris wants an annulment.  He is hoping to invalidate an ironclad prenuptial agreement that contains a confidentiality clause.  If he prevails, he would be able to tell-all about Kim in a highly well paid book or interview.  He might also be able to extort money from Kim to stay quiet.  Kris alleges Kim married him only to bump up ratings for her television show and make a splash on E!, which filmed their wedding.  Kris could also profit from Kim by filing a civil action for intentional infliction of emotional distress based on fraud.

Kim is worth $65 million while Kris earns $3.2 million a year playing basketball.

The couple’s story presents interesting family law questions.  An annulment voids the marriage – it is as if the marriage never happened.  The person wanting an annulment has to meet certain legal requirements in order to get an annulment.  One way to get an annulment is to say that the other spouse defrauded them in getting their consent to marry.

It is not enough to say that their spouse defrauded them, however.  A court will not award an annulment if the defrauded party had full knowledge of the facts constituting the fraud, and freely cohabited with the other spouse.

The fraud must be vital to the relationship – for example, having a secret intent never to live with their spouse (See Handley v. Handley (1960) 179 Cal.App.2d 742, 747 [defendant wife stayed in own apartment with young daughter, took property in her own name, refused to introduce plaintiff as her husband, and used her maiden name].)

What does this mean for Kris and Kim?  Kris can claim Kim never intended to live with him but only wanted him for the ratings and dumped him when she got what she wanted.  Kris, as a celebrity in his own right, however, was not naïve about the impact of marrying Kim.  He must have known that their marriage would benefit her show – and his career as well.  Further, they lived together for their short marriage.  The grounds for fraud go towards a vital aspect of the marriage relationship, but Kris might be charged with anticipating the fraud and going along anyway.  This divorce/annulment proceeding is worth watching.

The legal world of annulment is complex.  A person contemplating an annulment is wise to seek legal representation for their case.

Welcome to the blog for the Law Offices of Jane Aceituno!  This space will be used to educate the general public and practitioners alike on the gamut of family law topics – from general discussion of family law issues and case updates to application of family law principles to current stories in the news.  This blog is meant to provide general information about family law and is not legal advice for any particular person or persons.  If you would like legal advice from the Law Offices of Jane Aceituno, please contact the firm directly.