If I have failed to make a child support payment, will I lose the ability to see my children?

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Experienced San Francisco County Child Support lawyers will explain to you that in most cases, you will not lose the ability to visit your children. Under California law, both parents of a minor child (i.e., a child under age 18 (Fam C §6500)) have a duty to support that child. Fam C §3900.  However, the failure of a parent to pay his/her child support obligation will not impact the noncustodial parent’s visitation or other privileges granted by a court order. Fam C §3556. 

You will not lose your ability to see your child because the California Family Law system supports and goes to every extent possible to promote the ideal that children have consistent access to both parents. Nevertheless, the failure to pay your child support may result in other civil penalties (such as monetary damages, suspension of your drivers license, revocation of your passport, and wage garnishment) and even criminal penalties like contempt.  For example, California makes the willful failure to provide for a child under the age of 18 a misdemeanor with a maximum punishment of 1 year in the county jail and a $2000 fine. Pen C §270.

If you are having trouble with your payments due to a change in your employment circumstances or other financial strain, you can approach the Court and ask for a modification of your child support payments. The Court uses a guideline scale based on a computer program to estimate child support payments and will grant you relief if you meet certain criteria. If your ex spouse claims that you cannot see your children based on your failure to pay child support, you should consult a good San Francisco Family Lawyer who can help you adjust your You can contact me at Amanda@gordonfamilylaw.com for more information.

 

How to un-do my divorce?

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What happens when you realize that you made a mistake in the papers filed with the Court for a default judgement? Specifically, what can you do to change the Court’s order? Can you alter something that the Court has approved?

This blog post explores the procedural aspects of Family Code Section 2120 -2129 which codify reasons that you can argue to set aside a judgement after the Court has ruled. Grounds for relief include: duress,  perjury, fraud, omissions, and mistake. 

If you feel that something was omitted or misrepresented during your divorce because of information you later learn from your ex spouse and the divorce decree was signed by the Judge, you may want to explore the possibility of asking the court to set aside the judgment. As with most litigation, there is risk associated with asking the court to set aside the judgment and you will want to carefully consider the merits of your case and speak with an attorney about the cost of filing these motions.  

If you decide to go forward and ask the court for relief, procedurally, you will need to ask the Court to re-open the case. This means you will need to file a notice of a motion to set aside a judgment which will include an Application for Order and Supporting Declaration. A motion to set aside a judgment can be prepared similarly to a noticed motion for temporary orders. In most cases, the notice must be personally served on the opposing counsel and party. Important considerations for filing these motions are statutes of limitations (time constraints) and the grounds or claims made. For claims under Family Code 2120, the statute of limitations accrues when a party should have discovered the facts constituting duress, perjury, fraud, omissions, and mistake. For specific time limits, please see Family Code Section 2120. 

Before a court may grant relief, you will need to allege that the grounds for relief materially affected the original outcome of the case. You must also show that you would materially benefit from the relief. You can contact me at Amanda@gordonfamilylaw.com for more information.

 

Need your name changed?

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There are many different reasons aside from getting married or divorced that you may want to change your last name. For example, you may want to change a name in conjunction with an adoption proceeding, or if you want to change your name back to your maiden name for work purposes, or if you want to change your name a few months or years after your marriage license is file.

The first step in changing your name in California is to determine which County is your primary residence. This does not have to be the County where you have property, but you do need to show that you have the intent to be a resident in that County. Documents that can be used to establish residency include:

• Utility bill dated within the last 30 days • Local property tax statement or mortgage payment receipt dated within the last 30 days • Bank account statement dated within the last 30 days • Proof of a minor currently enrolled in a San Francisco school • Current San Francisco Golf Resident Card • Employment pay stub dated within the last 30 days • Written ruling, order or notice from the Residential Rent Stabilization and Arbitration Board dated within the last 30 days • Jury summons or court order issued by a state or federal court and dated within the last 30 days • Federal or state income tax or refund statement dated within the last 30 days • Insurance bill (homeowner’s, renter’s, health, life or automobile insurance) dated within the last 30 days • Written verification issued by a homeless shelter that receives City funding confirming at least 15 days residency within the last 30 days • Written verification issued by a hospital, health clinic or social services agency that receives City funding confirming at least 15 days residency within the last 30 days • If a certified copy of a marriage certificate is presented at the time of application, an applicant may prove residency using documents bearing the name of his/her spouse


Once residency is established, then you need to check the local rules of that County to see how name changes are processed in that County. Each County has a different system.

Traditionally, you will need to file the following documents and obtain a judicial signature on the Order to Show Cause or NC 120

  • Civil Case Cover Sheet - CM-010

  • Petition for Change of Name - NC 100

  • Name and Information about the person whose name is to be changed

  • Order to Show Cause - NC 120

  • Decree Changing Name NC- 130    

You will need to have the following information to fill out a name change:

  • Date of Birth  

  • Place of Birth

  • Gender as stated on original birth certificate

  • Current Residence address  

  • Reason for change of name

The cost of a name change is a filing fee and the fee to publish the name change in a newspaper for four weeks.

Once you file the initial paperwork, the Court will set a hearing date, and you will return in approximately 6 weeks for a hearing on your change of name. If the change is not opposed, the Court will grant the order changing your name.

You can contact me at Amanda@gordonfamilylaw.com for more information.

What is the date of separation and why is it important?

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You may hear family law attorneys talk about the “date of separation.” This blog post goes over the basics of why the “date of separation” is important for your dissolution.  Under California law, the date of separation is used to determine when the “community” ends for the purposes of property division. This means that prior to the date of separation all earnings, property, and gifts acquired are part of the community, and after the date of separation any earnings, property, and gifts acquired are separate property.  

This date of separation is also used to determine spousal support. This is because the total length of the marriage is a factor for determining the amount and duration of spousal support.  This year, the California Supreme Court held that the date of separation is when you are physically living separate and apart. 

Additionally. while the date of separation noted on your Petition for dissolution may be considered by the Court, this is not a binding date and the Court can consider other factors. For example, here are some of the factors that could be taken into consideration when determining the date of separation:

  1. When did the parties stop living in the same residence?

  2. What type of communication are the spouses having? How frequently is the communication?

  3. Are the two spouses eating meals together, running errands, or continuing to see each other socially?

  4. Does the spouse who has left the family residence still use the residence as an address for the DMV and voter registration?

  5. Have the parties bought property together recently?

  6. Do the parties file joint income tax returns?

  7. Do the parties attend social functions as if they are still a couple?

  8. Has either party told family and friends that they are no longer a couple?


Essentially, you should ask yourself, when did we stop acting like a married couple to our community, family, and friends. It is important to work with a lawyer to determine this date if you think it will be a point of contention during your dissolution.