Topics

... but I figured I would see if anyone here would know how to do this...

Dissolution only Jan 1996, bifurcated from property and custody.  Custody agreements reached and filed. Marital Assets (only some furniture and kitchen appliances) were divided, no agreement was filed.

I have tried to negotiate a settlement on the marital debt many times over the years with my ex.

I don't see any other resolution then taking it through the courts.

1) What do I need to file to get the marital debt process started again?

Thanks!!!!

BM works for Countrywide, she was paid a bonus every month until she got a new boss.... and started dating that boss.

The CS is based on her bonus earnings.

Does anyone know how Countrywide specifically calculates and pays the bonus to the people that support the loan agents?

We suspect that her boss is paying for her house and not putting her "bonus" on paper so she doesn't have to pay CS.

Thanks!

FTK

State of CA......
Does anyone know if alimony from a subsequent marriage is considered "income" from a CS perpective?

Thanks!!!

FTK

DCSS filed the CS paperwork 1/27/04.  Even though there is not an amount set now, I know it will be retro to that date.

Will arrears automatically be put on the amount due once it is set?

Example:  They decided on $200/ month.  Will a check need to be cut for the $200/ month, plus arrears on the day it is ruled on?

Thanks!!!
FTK

Santa Clara County, CA

Emergency hearing in 2003 granted full physical custody to father, parents continue to have joint legal with father having full decision making authority on school.

Result of the emergency hearing time share became 75% Father/ 25% Mother.  No child support was ordered, but Mother did agree to pay for ½ of childcare expenses and ½ of uncovered medical expenses as part of the 2003 hearing. (these amounts are still un-reimbursed by mother)

Mother moved from Santa Clara County in April 2006, time share became 85% Father/ 15% Mother.
I opened a case with DCSS in Sept 2006 after mother and I could not agree on a child support amount. Child has been undergoing a significant amount of medical testing recently.

Mother is fully supported by new husband, they have an agreement that she be a stay at home mom.  Mother worked in previous marriage (and up until she because pregnant in 2003) as a waitress.

I received notice of a DCSS hearing scheduled for February.

Questions:
1) Will DCSS impute mothers income at minimum wage?

2) What information should I bring to the hearing besides the information DCSS has requested I ?

3) Will DCSS take in to account that I have another child that has medical problems that cause a financial hardship?

4) Is there a chance that there will be no support ordered from Mother to me?

5) I just lost my job at the end of December, how will this impact the hearing?

Thank you

BM stipulated to an imputed income which was about 30% higher than she was currently making for the last CS order (Nov 2005).

BM has recently stopped working, I believe she is pregnant.

Questions
1)  I thought I read somewhere that if you stipulate to a higher income, that you can not reduce it, is this true?

2) If this is not true and she can file for a CS reduction, what would be my best argument?  

I don't want to be stuck paying her CS because she has now decided to stay home.

Thanks!
FTK

Oct 2003 stipulation states that parents shall split the cost of private school 50/50 with Mom reimbursing Dad for those costs.

Mom filed OSC in Aug 2005 to reduce her share of the for private school costs to zero.

Judge ordered that based on Mom's new salary Mom would responsible for "32% of the private school costs for the 2005-2006 school year only"

Questions:

1) Is Mom still responsible for a % of the school costs?

2) If yes, is she responsible for 50% or 32%?

Thanks!
FTK

Santa Clara County

Ex and I have a court ordered stipulation which states that each party shall exchange current pay stubs by the 5th of each month.

Ex has been employed since April, and is refusing to provide pay stubs.  She is claiming she has not received one, but then will reference a pay stub in a different conversation.  The children told me that she cashes her paycheks.

Questions:

1) In an effort to avoid incurring any additional legal fees for me, can I contact the employer and provide a copy of the court ordered stipulation and ask for the copies?

2) Would this possibly be considered harassment if I contact her employer?

Thanks!
FTK

I have sole physical custody and joint legal of DS with ex.

Ex has been in an abusive relationship for years.  DS sees a therapist on a regular basis.  DS admitted to therapist that Step-parent abuses him mentally and physically at Ex's house.

Therapist reports to CPS and they opened investigation in their county and in mine.  Their county never interviewed the Step-parent, only interviewed my EX.  My county interviewed son at my house and found consistency of his story with "other" investigations they had on file regarding step-parent.  CPS recommended that DS still go to Ex's house for week in summer, so they could interview him up there.

DS came home from Ex's with bruises on him and his head shaved.  (This is the Ex's way of retaliation, humiliating DS)  DS told me that Ex and Step parent held him down to shave his head, that is why he had the bruises.  I immediately called CPS in my county since the other case was still open and she told me to call if anything else happened.

DS told CPS on the phone what happened.  I took DS in to see the investigator this morning and DS has recanted the entire story, even told investigator that I instructed him to make up those lies about Ex's new spouse.

I am at a loss, I want to protect my son, but he seems to be completely programmed by Ex that anything "bad" that happnes at their house is a lie.

Questions
1) Next steps?  

2)I remember you recommending that a polygraph could help in proving innocence, would it help in this situation?

Thanks
FTK

Santa Clara County , CA

I have had primary custody of the children since 1995 when BM left.

BM had every other weekend and 2 afternoons / week from 1995 to 2003 when BM moved from the bay area.

BM and I then stipulated to update the parenting plan to give her 1 weekend / month.

Feb 2005 BM moves back to the Bay Area and wants to return to the 1995 schedule (but the 2 afternoons would be overnights).  I did not agree.

BM started court action Apr 2005.  We had a JCC in August and I agreed with BM having every other weekend and one overnight/ week.  BM was still pushing for the EOW and 2 overnights/ week.  Judge ordered us to assessment.

BM dragged the kids in to the assessor in Dec 2005 and made them tell the assessor that they wanted what BM was asking for.

I did not want the kids to be stressed out, so I made the offer in Dec 2005 to BM to give her the schedule she was looking for.  The assessor withdrew from the case in Dec 2005 since all sides communicated that we were coming to an agreement.

BM never responded to the new stipulation that my lawyer drafted and sent over in Dec 2005.  Her attorney expressed frustration at her lack of response.

In between Dec 2005 and Apr 2006 I found out that BM's older (not my) daughter had been sent to a "brat camp".  I began having second thoughts about the offer that had been made in Dec 2005.  My lawyer advised that we should wait to see their response before making any changes to the offer.

Fast forward to today.  I just received notice that BM's attorney has withdrawn from the case.  BM has not said another word about the 2 overnights/ week.

I have the order from Aug 2005 that spells out everything, Visitation and Child Support.  I am happy with things staying the way they are.

1) It is my understanding that she will have to start over again to change things, is this right?

2) If BM decides to push the 2 overnights/ week again can I use the lack of response against her?

3) Can BM use the draft stipulation to show that I was agreeable to the schedule at one point and push to have it ordered?

Thanks for your help
FTK
 

Santa Clara County, CA

I have sole physical custody and joint legal custody of son.

EX has visitation 1st, 3rd and 4th weekends of the month from Friday after school to return to school Monday morning. No holidays.

I am 99% certain that Ex has moved out of the Bay Area in the last few weeks.  ( I tried to call the home # and I got a forwarding # for the Sacramento Area)

There are no first right of refusal clauses in the parenting plan.

I strongly believe that Ex will have mother in law (son's step grandmother) pick him up from school Friday and keep him for the weekend.  I don't think Ex or Ex's spouse will want to drive here and back to spend time with son.

Do I have to let son go with Ex's mother in law?

Can Ex have someone else take her visitation time with son?

Thanks!

Santa Clara County, CA

NCP is refusing to pay her share of the court ordered amounts for the children.  

NCP claims her lawyer told her not to pay these amounts.

1)  Contempt is to wilfully disregard a court order correct?

2) Would her laywer really tell her to violate a court order?

Thanks!
FTK

Santa Clara County, CA

I am custodial parent.

NCP's Child support is based on a % of her bonus each month.

NCP's lawyer sent a letter a few months ago giving me a "heads up" that her bonus income would be almost non-existent going forward due to having a new manager.  

About the same time I learned that NCP was carrying on a relationship with her new manager and suspected that he was paying for her new home and all utilities.

Sent interrogatories for NCP to fill out.  Main questions were "who is paying for your home" and "who is paying for your utilities".  As we suspected NCP's new boss is paying for her home and utilities.

Coincidentally the same time she moved in to her new home (and the boss started paying for her living expenses), she stopped getting bonuses all together.  (They went from $4k/ month to $0)

I contacted the company that the NCP works for and they confirmed that bonuses are paid at the discretion of the employees manager, and that it was possible that the manager was receiving the bonus instead of the NCP.

To me it is clear that there is something going on here.

How should I proceed?

Thanks
FTK

Made an offer to BM to settle everything

I want part of the new stipulation to have a quarterly academic review in it.  If the children's GPA drops below a certain level BM's visitation during the school week will be scaled back.

What is the best way to word this?

Will it be enforceable?

Will there have to be a hearing at that point to change the visitation schedule?

Thanks
FTK

I have been PCP since Mom walked out more than 10 years ago.  Mom moved out of the area 2 years ago and then back in March.  She is wanting 50/50 now.  I have been fighting this as I don't believe it is in the best interest of the kids.

After to JCC's we were referred to assessment.

First assessment meeting was last week.

Assessor met with attorneys for ½ hour and then with me for 15 minutes.  Assessor told me to return at 1:30 and she then spoke to Mom.  (What I did not know at this point was Mom's attorney and Mom both pushed the assessor REALLY hard to bring the kids in)

When I returned, mom was there with the kids.  Assessor then spent 30 minutes with younger daughter, then 20 minutes with older daughter and then called younger daughter back in for another 15 minutes.

After they were done, Mom took the kids and left.  (Mom has first week of Christmas vacation this year)

My wife and I then went in to meet with the assessor.  The assessor basically berated me for being an involved father and told me that my involvement with my kids school was preventing mom from being involved.  She made numerous other references in Mom's favor and against me and my wife.  Assessor also gloated how she pulled our criminal history and that either my wife or I had not been arrested, and that Mom hadn't either.  I know for a fact that Mom has been arrested, she was arrested for punching my wife.  When I corrected the assessor, this just seemed to make her more upset with me.

Assessor then went on to inform me that she had asked the kids what they wanted and they said what mom was asking for was what they wanted.  

I don't understand how she could effectively question the kids after only spending 15 minutes with me and not gaining a full understanding of the issues.

I have never spoken to the kids about the court proceedings, unlike their Mom.

The assessor basically told me that no matter what my concerns were that Mom could ask for 50/50 and unless she was physically abusing the kids she would get it.

It is my understanding that the assessors job is to "assess" the situation and make a recommendation.

1)   How can I prove that the assessor is biased against me?
2)   Can I ask for a new assessor now?
3)   Does it look bad on Mom that she has been pushing to involve the kids?
4)   What would be the next course of action (make a deal and just wait for mom to move away again)?

Thanks
FTK

BM moved back to the area after being away for 1 1/2 years in Jan 2005.

She didn't file for a change in her visitation schedule until May 2005.  (I had been trying to negotiate with her in the month of March, and then she went silent and I got served in May)

At the first Judicial Custody Conference, the judge leaned on me really hard to "give mom a chance"  I reluctantly agreed to one overnight/ week during the school year in addition to mom's Every other weekend.

Judge wanted to review in months.  At the 3 month follow up (another Judicial Custody Conference) I had significant eveidence that the kids were not doing well academically when mom had them the night before.

Mom was blindsided, cried to the judge that she didn't know they were doing that bad in school... Judge caught mom in several lies.

Judge has now sent us to assessment.

I recently discovered the BM is evading a civil trial in her old county.  She has all of a sudden changed everything in to her bosses name.

1)Should we bring this up in assessment?

2)Would a "call" to the lawyer on the civil trial to let him know where she is look bad on my part?

3)Since we are coming up on one year from when BM moved back to the area what is the probablilty that the assessor is going to recommend things stay as they are (status quo)?

Thanks
FTK

My ex and I have been in and out of court since she moved back to the area in February.

She was asking for every other week, I was proposing every other weekend.
The last hearing the judge asked me to give my ex a chance to prove that she can parent on school nights.
She told the judge that she would be taking over the mortgage on her parents house and would not be moving again.

Since that hearing my ex :
-Does not review homework (younger daughters teacher has a planner you have to sign after homework every night)

-Does not put the children to bed at a decent hour

-The children fail tests after they have been at their mothers house the night before. ( I have letters from teachers)

-She signed up to volunteer at the childrens school and then told the children it was my weekend and she wasn't going to go, to tell me to go in her place.

-Has been kicked out of her parents house (in front of the children)

-Is seeing boyfriend #3 in as many months (and yes, they sleep over when our daughters are at her house)

-Is carrying on a romantic relationship with her direct supervisor.

-Her direct supervisor is either paying for all or part of her rent

-Telling the youngest that she is going to Hell because she was never baptized

-Let her older daughter (not mine) who is 15 drop out of regular high school to be on an independent study program.

My daughters make up reasons to come home, even if for a few minutes on their moms school nights.

My daughters both have cavities now.  My younger daughter told me she didn't even have a tooth brush at her moms house.  They have not had any cavities since my ex lived in the area a few years ago and saw them regularly then.

1) Of the items I have stated above, which will carry the most weight with the Judge?

2) Are there any key buzz words/ phrases that will help with the Judge?  Ie (best interest of the children)

3) Any other words of wisdom you can share?

Thanks!
FTK

Hi Soc,

Sorry to bother you again, but need another opinion.

BM filed to terminate her obligation to pay 50% of private school tuition for the children back in April 2005.  Order in effect singed in 2003. DH and BM agreed to the % of private school tuition split, BM was unemployed at that time.  She had just quit her job of 2 years to move out of the area with her husband and away from her family and the children.

BM was unemployed until her divorce from husband #2 was finalized February 2005.  At which point she moved back to the area and in with her parents.  She received a substantial cash settlement in addition to assets.

BM is now employed and earning a salary plus commissions.  Our lawyer is unable to get BM's lawyer to provide the details of her commission plan.  BM is arguing that with her salary she is unable to continue to pay 50% of the private school tuition and does not feel she should pay any portion.  (She helped select the private school several years ago, and the stipulation states the children will continue to attend this school)

We are scratching our head on the rationalization that she is now unable to pay any portion of the private school tuition.  She went from being able to pay 50% while she was unemployed to now, not wanting to pay anything when she is employed.

Questions:

1) Will the Judge validate the BM's rationalization?

2) Will the judge order either 0% or less than 50% if we don't have a full understanding of her income (commissions)?

As always, thanks for your guidance and support.

FTK

By the way, we finally got to the bottom of the wedding issue... BM actually told her lawyer (who communicated to our lawyer) that BM didn't believe the children needed to attend the wedding or see their Grandmother because it was my (Step-Moms) family.  Apparently her lawyer does not agree with her on this one.

Santa Clara County, CA

DH has primary custody.  BM lived out of the area until approximately 6 months ago.
DH tried to negotiate an increased timeshare with BM, but she refused all offers DH made and got a lawyer in April.

Our reasons for not agreeing to BM's timeshare proposal (eow, and 2 overnights per week)  is that she consistently acts against the best interest of the children and is not responsible enough to care for them for mid-week overnights during the school year.

BM has had the children for her summer parenting time for a month now.  

During the past month :

-BM has left the children in the care of her mother for 1 week, without offering DH to have the children.  (BM lives with her parents)

-BM has neglected to get the children the summer reading books as required by school.  (The children called home and we ordered though Amazon and shipped them directly to them)

-BM has also had her mother take SD to a medical appointment, even though DH offered to take her if BM was unavailable to take her.

-BM has refused to let the children attend a family wedding with us even though we gave her more than a months notice.

-BM has not responded to numerous email requests to have the children for a day to see their visiting Grandmother.

-The children do not have their own room at BM's house; they share a room and a bed with BM.

Mediation didn't work; we now have a Judicial Custody Conference coming up.


Questions:

1) Will the facts I listed above be enough to give the Judge the information she needs during the JCC?

2) I know you can't tell the future, but what do you think the outcome of the JCC will be?  Will the Judge order a change, or that the status quo is to be maintained?

3) What if anything should we document to bring up at the JCC?

Thanks!
FTK

Santa Clara County, CA

Original custody order DH primary parent BM : EOW, 6:30pm-7:00am 2 nights per week and 6 weeks in the summer.
BM never exercised her 6 weeks in summer the entire time this custody order was in place (7 years).

BM and DH singed an amended parenting plan in Oct. 2003 when BM moved out of the area.  DH primary parent BM: one weekend a month, 1/2 Major holidays and 8 weeks in the summer.

BM moved back to the area in January (didn't tell DH until February).
Since she moved back she has missed 2 of her 5 scheduled weekends.

At the beginning of March DH offered to amend parenting plan to BM: EOW, 1/2 summer and 1/2 major holidays.

Next thing DH got (at the end of April) was an ex-parte hearing ordering BM and DH to mediation.

Mediation was yesterday, they did not agree on anything.  BM wants to go back to the way it was before she moved and DH does not want the kids bouncing around during the week.  (They suffered academically under the original order, and showed GREAT improvement after BM moved away in 2003).

The mediator said it would now go to judicial assessment.

1)  It this correct?  and what is Judicial assessment?

2) What if anything do we need to prepare for this step in the process?

3) Based on the facts above what do you think a possible outcome of this judicial assessment will be?


Thanks!
FTK

Who has the burden of proof in a custody modification case?
The person brining the action?

Thanks

FTK

BM and DH were divorced in 1996.  DH is CP, BM moved back to the area in January of this year.  DH has been trying to negotiate with BM to change the parenting plan, she is not cooperating.

DH got "served" (not really, they are not stamped, left on our door step and no court date) of an exparte hearing for attorney's fees.  Her attorney is saying she is eliglbe under FC 2030 to receive $$ from DH.

BM is claiming that she does not have the money to be represented to resolve the issues of modification of support and custody.  BM "lost" her new job in March.  

BM paid a $2,500 retainer to the lawyer that prepared the papers.

Ironically BM currently owes appox $ 2,500 to DH for past due expense reimbursement requests.


BM's income and expense declaration states she had $2,000 in income last month and $167 as the average monthly.  ($167*12=$2k)  Basically she is claiming that from 4/1/2004 - 3/31/2005 she only had $2,000 in total income.

She states in her declaration that the divorce from her most recent husband was finalized Dec 2004.

DH and I got a copy of her MSA from her most recent divorce.  Her ex-husbands declaration states that he was paying her $1,000/ month in spousal support from 4/26/2004 to date of divorce.  Also states she was collecting unemployment compensation of $1,200/ month.

Ex husband paid BM $15K in Oct 2004 at signing of MSA, and $40K in Feb 2005 for BM's share of the interest in the house. (After the date of divorce and the original MSA)

Alot more income than she put on her income and expense declaration.

You used the term "unclean hands" in answering another persons question a short time ago about the opponent being deceptive.

Questions

1) Will this information prove to the court that she has "unclean hands"?

2) How valuable will this information be to prove that she is not credible?

3) Will we be able to use this information in the custody hearings?

4) I looked up FC 2030 (Santa Clara county) it says it is for divorce and separation, does it apply to custody also?

5) Does the fact that she chose to pay a lawyer $2,500 to start a fight with us and neglect the childrens financial needs show she is acting against the childrens best interest?

Thanks a bunch!!!!

FTK

Hi Soc,

One more question on the check that BM bounced to DH in October.

We sent all demands for payment as required by CA Bad Check law to her.

CA law says we can ask for a statutory penalty also.  (3x check amount, maximum of $1,500)

Check was for reimbursements of the Childrens Expenses, including Tuition.  We may have to file contempt charges to get her to pay.  She has not paid anything for the kids since Sept.

She called DH a few weeks ago and let him know she would be paying everything outstanding this month.  We want to send her a total so she has it handy.

Question

1) Would it hurt us in any way to ask for the stautory penalty from her if we have to file contempt if she doesn't pay this month?

2) Will a family court make her pay all the amounts past due including the statuory penalty?

Thanks for your help!!!
FTK

Divorce in Santa Clara County, CA

DH and BM Stipulated CS and Private School Tuition.

BM has not paid either since Sept.  

Last payment she made on 10/25 bounced due to insufficient funds.
DH called her on 10/28 and demanded payment within 10 days.
BM's response "you will never get any more money out of me"

We looked up the bad check statue for CA.
Mailed the demand for payment on 11/10.  Included the wording as per the statue.

We are told our next step is small claims to recover the check amount ($780) plus the statutory penalty (in this case $1,500) total of $2,280.  She lives in Yuba County, so we know that we are to file in that small claims court.

The statue says that the check amount plus statutory penalty is due is payment is not made within 30 days of the mailing of the demand for payment.

Questions:

1) Should we file with small claims on 12/10?
2) Will Small Claims tell us to take it to family court since the check is for Tuition and expense reimbursement?

3) Should we attach a copy of the bad check, proof of mailing of the demand and a copy of the letter to the small claims filing?

4) We are assuming that the check was for payment of back CS and Tuition, but we can't match the amounts to anything she owed.  If we recover the money, should we pass on a month of CS to DCSS? (We could reasonably assume that she was attempting to pay one month of CS and Tuition, plus who know what)

5) We are planning on filing contempt on the non payment of Tuition and expense reimbursement after the first of the year; will the small claims case negatively impact the contempt?

Thanks for all of your help!!
FTK

PS - I think a few years back you hinted at some "big" announcement you were going to make... did I miss it or is it still in the works?

Santa Clara, CA

In May 2004 DH and BM stipulated to a CS amount effective Jan 2004.  This document has been notarized and filed.

BM has not been working since Dec. 2003, but will be employed again shortly.

DH would like to have BM's wages garnished for CS when she is employed.  (She is consistently 1 month in arrears)

1) Is there a form that needs to be filled out and signed by the court for garnishment?

2) Will a copy of the order be sufficient for the employer?

3) Would BM be able to file to have the CS amount reduced?


Thanks!!

Santa Clara County, CA

BM is ordered to pay 1/2 of Private school tution plus Child Support.

She had not paid either in 2 months, she finally cuts a check, it bounces.

1) Can we press charges against her for the bad check (it is almost $1k)?

2) Who do we report it to?

3) Should we file contempt for non payment on the amounts that bounced and the current amount ?  (Another tuition payment was due yesterday and CS tomorrow)

Thanks!
FTK

BM is court ordered to pay the following directly to DH

-Child Support (due on the 27th of the month)
-50% Private School Tuition (due on the 25th of the month)
-50% of Medical Expenses (Billed Monthly, Due 30 days after billing)

BM is now past due on CS, Tuition and 2 months of Medical Expenses.  Total Amount Past Due approx $1,100.

BM has been late on ALL of her payments in the past 6 months (usually not more than 10 days though)

We have sent reminder letters, post cards, etc... to BM with the amounts due and dates.

DH wants to file contempt charges.

Questions

1) Should DH wait to file contempt until the CS and Tuition amounts are more than 30 days past due?

2) Should DH file contempt on all violations, even the ones in the past that she has paid?

3) What is a normal "grace" period for making those payments?

Thanks!
FTK

As you told me below the CS will be retroactive to the date DCSS filed with the court 1/27/2004. (Even though DH and BM are stipulating to the amount)  

Once the agreement is signed she will automatically be in arrears.

Questions.

1) How long should we give her to pay it?

2) Will interest be charged starting the day the agreement is signed or will it be retroactive if she doesn't hand over a check that day?

I just want to make sure this whole thing is done by the book.

Thanks!
FTK

DH and his ex are finally settling their marital debt (after 9 years)

They have negotiated a settlement, but are utilizing a lawyer to make sure the paperwork is written up properly.

DH filled out the Income and Expense Declaration and put my income as "unknown"  Which he really does not know what I make, and when he asked me for the purpose of including on the form, I refused to answer.

Ex's lawyer is having a fit over my income listed as "unknown".

1) Do I have to tell them what I make?

2) If not, what should DH tell the lawyer?

Thanks
FTK

-BM moved Oct 2003  

-Split now 80% (DH)/ 20% (BM)

-DH started paperwork with DCSS in November 2003.  DCSS filed and served BM January 27, 2004, Hearing is scheduled for May 27, 2004.

-DH and BM have now negotiated Child Support Amount.  BM will pay DH directly.  DH is going to stop case with DCSS as soon as the agreement is finalized.

Questions

1) What is the effective date of the Child Support (the date she moved, when the file was started with DCSS, date DCSS filed, or date agreement was reached)?

2) What is a standard "late fee" for late payments?

Thanks!!!
FTK