Category Archives: Child support

Is the marriage of Kanye and Kim over?

The tabloids are hinting that Kim is considering filing a petition for dissolution of marriage.  While no specifics have been stated, the hint is that this has something to do with Kanye’s recent melt down. Also, Kim is concerned for the safety and well being of her two children,  3 year old North, and 1 year old Saint.

In California, there are only two grounds for divorce. The first, is irroncilable differences. The second is incurable insanity. Most California divorces fall under the first category.

A married person can file for divorce under “irreconcilable differences” for any reason s/he desires. California is a no fault divorce state. That means that a California judge will not probe into the reason for divorce. Accordingly, Kanye’s melt down becomes irrelevant, with regard to Kim’s petition for dissolution.

As to Kim’s desire to keep her children safe, Kanye’s meltdown may come up if the parties contest custody. It may be relevant regarding which parent will wind up with primary physical custody; and, whether the other will get unsupervised or supervised visits.  It may also have bearing on the frequency of  visits, and how often Kanye will be able to see his children.

Once custody is determined, that will have bearing on the amount of child support Kanye may have to pay to Kim, since the time each parent spends with the children is a major factor in determing support.

However, Kanye’s meltdown will have zero effect on Kim’s petition for dissolution. In fact, if the issue of fault is raised during the proceedings, the party raising the issue could be sanctioned or fined.

 

Do Prenuptual Agreements and Forum Shopping Pay Off? What Can Be Learned From The Breakup of Katie Holms and Tom Cruise

The shorthand answer to that question is that with careful planning, a divorcing couple can Kattie, Tom, Suriavoid a long drawn out court battle.  They can resolve the major issues within a matter of weeks, thus avoiding the stress and expense that is inherent in most dissolution cases.

First, Tom and Katie had a prenuptial agreement regarding their finances, in the event that they ever split up. Therefore, they avoided a long drawn out court battle over division of property and assets. Katie gets $15 million does. That is $3 million for each year that the couple was married.

A prenuptial agreement is a tool used by wealthy people or people with assets. It gives them the ability to alter the normal rules regarding spousal support and community property in the event of divorce. It is a contract between engaged people that takes effect when they get married.

Since the parties financial situation may change during the course of their marriage, it is not always possible to predict, in advance, whether or not a prenuptial agreement will be legally enforceable when the parties separate or divorce. That is why it is important to hired skilled legal counsel when entering into a prenuptial agreement, to ensure that you have adequately complied with all of the legal requirements. While the cost of drafting a prenuptial agreement may be costly, it is far more cost efficient than not having one, and having to litigate property issues when the parties divorce.

A prenuptial agreement cannot include issues regarding child custody and child support. However, Katie was able to get control of the child custody issue by careful planning. First, she moved with her daughter to their home in New York. She stayed in New York long enough to make sure she met the “residency” requirement. She changed her cell phone number and fired all of their New York staff. (She probably did this to get away from the influence of the church of Scientology). She then filed for divorce in New York, rather than California. In New York, there is a presumption of sole custody. While in California, there is a presumption of joint custody. Also, in New York, judges are more likely to listen to arguments regarding the influence of fringe religions, such as Scientology, on children. I am also told that New York is a little more sensitive to mothers who are filing for sole custody.

Thus, by carefully planning this out, and making sure that she met the residency requirements to file for divorce in New York, Katie was able to select a jurisdiction, where the law is more favorable to her position.  In the end, Tom Cruise agreed that Katie would have primary physical custody of their daughter,  Suri, while he would have regular and meaningful ‘visitation’ rights. The distinction between joint physical custody and visitation is important when dividing up parental rights and responsibilities.  Katie also has exclusive say over the choice of her daughter’s religion and education. She enrolled her daughter into a private catholic school. Had this matter been decided in California, they probably would have had joint legal custody. That means that Tom would have had equal say in his daughter’s education and religion.  The parties could have very likely been back in court battling over these issues long after the divorce was final.

As to the issue of child support, in California, that is done by guideline. It is based on the time that each party spends with the child, and the respective incomes of both parties. In any event, I doubt if child support was an issue of contention for Tom and Katie. I cannot imagine Tom Cruise refusing to pay child support, or arguing about the amount. He probably does want his daughter to be financially secure.

So the moral of the story, or the lesson to be learned from the split of Tom and Katie, is that with careful planning, parties can resolve major issues of finances, property division and child custody and support within a matter of weeks, if not days. (Tom and Katie settled most of these issues within 11 days after she filed for divorce)! Thus, they can avoid the stress and expense of what otherwise could have been a long and drawn out court battle.

What happens to a California child support order when the Baby Mama marries the father?

The shorthand answer to that question is that the prior court order for child support is Dad marries baby mamaautomatically extinguished. That is what the 4th circuit of the California appellate court recently held in the 2012 case of In re Marriage of Wilson & Bodine (2012) 207 Cal. App. 4th. 768.

I recently had a client who was facing a Contempt charge for child support payments due from 2012 to the present. The facts were as follows. He and Mom had a child in 1998. In 2002, the Baby momma got a court order for child support based on the findings in a paternity test, which proved that my client is the biological father. The parties got married in 2005. They were divorced in 2009. In 2005, after the parties were married, my client stopped making child support payments. He did not resume making child support payments when they divorced in 2009.  Then, in 2013, the former wife (and former baby mama) moved the court for payments which were past due under the 2002 child support order. The County backed mom and filed Contempt charges against my client. Of course Contempt charges are very serious because that means the client is facing potential jail time.

Then I found the Wilson-Bodine case. In a nut shell, that case states that court orders for child support stem from the parties separate interests in child custody and child support when they are living apart, and raising their children separately. However, once the parties are married, they then have joint interests in the support and custody of their children. Accordingly, any former court orders for child support are automatically extinguished, when the parties subsequently marry. The result is the same whether the former child support order arose from a prior marriage, or from a paternity action.

The Wilson-Bodine court reasoned that in California, there are built in protections for children within the dissolution proceedings. All California courts in a divorce proceeding will examine the income of both parties, and give orders for child support both when the proceedings are underway, and when the parties are finally divorced. Therefore, there is no longer a need to enforce or to rely upon a child support order from a proceeding that arose prior to the time the parties were married.

Accordingly, in my client’s case, since the county was relying on a 2002 child support order, which was entered prior to the time the parties were married in 2005, the Contempt charge against my client had to be dismissed, as a matter of law.  Of course, my client was relieved because that meant he did not have to go to jail. He also does not have to make back payments for past due child support, since said payments were based on the 2002 court order. Under the ruling in  Bodine-Wilson, that order was automatically extinguished when the parties married in 2005.

Keep in mind, however, that he may still be liable for child support based on orders from the 2009 divorce proceeding. The County just cannot go after him for past due payments which are based on the 2002 court order.

You all may be thinking that is just another quirky decision coming out of California. You will be surprised to learn that, in fact, that is not the case, at all! The 4th Appellate District relied on the reasoning in a case coming out of North Dakota, when it handed down its ruling the Bodine-Wilson matter. (See Schaff vs. Schaff (N.D. 1989) 446 N.W. 2d 28, at 31).