What is a Postmarital Agreement?

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A Postmarital Agreement, sometimes called a Postnuptial Agreement, is an agreement created by a couple during their marriage for many of the same reasons that an engaged couple creates a Premarital Agreement: to govern their financial lives during the marriage and to determine what will happen in terms of property division and spousal support if they should divorce.   

Requirements

There is an additional enforceability hurdle for couples wishing to enter into a Postmarital Agreement: as spouses, they are subject to a set of fiduciary duties that do not exist for fiancés.   This includes the duty not to take financial advantage of the other spouse.  Because a Postmarital Agreement usually includes some circumventing of community property law, the Agreement is going to be subject to a presumption that one spouse is taking advantage of the other.

So while Postmarital Agreements do not appear to be expressly governed by California Family Law section 1600, case law has confirmed that the same rationale applies when enforcing them:  each party must sign “freely, voluntarily and intelligently.”  

In order to avoid the presumption of unfair advantage, most professionals believe that it is imperative that both spouses be represented by attorneys and that all steps be taken to show that both spouses signed the agreement freely, voluntarily and with full knowledge of rights he or she could be giving up. 

If you are interested in a pre or post nuptial agreement, you can contact me at Amanda@gordonfamilylaw.com for more information.

Can I deduct my travel expenses from child support?

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Yes, parents who travel to visit with their children can deduct their travel expenses from child support under Family Code 4062. Travel expenses for visitation are one of the discretionary items that may be added to statutory formula support as additional support for the children.

In order to ask for a deviation from guideline support, a court may deviate from the statewide child support guideline if it finds that application of the formula would be unjust or inappropriate due to special circumstances in the particular case. Fam C §4057(b)(5).

While Family Code 4062 does not define what is meant by the term "travel expense, the Court in Marriage of Fini (1994) 26 CA4th 1033, determined that because the expenses are typically incurred by the noncustodial payer of support, this expense should actually be considered a "negative add-on," which has the effect of reducing child support. 26 CA4th at 1039 n5. The court in Marriage of Gigliotti (1995) 33 CA4th 518, 529, disagreed with the court in Marriage of Fini, finding that the court does not authorize a "negative add-on," only "additions to the guideline formula amount because of expenses set out in [§]4062."  

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.

Can I reduce my child support add-ons?

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Under Family Code 4061(b), either parent can ask the Court to order apportionment of add-on child care expenses to be different than the 50/50 split. 

Parents are often surprised that Family Court can order them to pay for 50% of their child’s extracurricular expenses, even if they disagree with the extracurricular. For example, the Court can order a parent to pay for tuition of a private highschool or music lessons, even if they disagree with the choice of the child attending that highschool.

When there is a significant disparity of income between parents, it may make sense to ask the Court to use the Family Code 4061(b) setting in Dissomaster to ensure that the childcare add-on expenses are allocated proportionally based on the parents income.

This dissomaster setting can significantly reduce the portion of add-ons that a parent is responsible for covering.

Family Code 4061 provides the following guidance:

(b) If requested by either parent, and the court determines it is appropriate to apportion expenses under Section 4062 other than one-half to each parent, the apportionment shall be as follows:

(1) The basic child support obligation shall first be computed using the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate rebuttal factors in subdivision (b) of Section 4057.

(2) Any additional child support required for expenses pursuant to Section 4062 shall thereafter be ordered to be paid by the parents in proportion to their net disposable incomes as adjusted pursuant to subdivisions (c) and (d).

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.

Can I ask the Court to order reimbursement for property damaged by my spouse/partner?

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California law allows for restitution under the Domestic Violence Prevention Act or Fam C §6342. The Court cannot order a restitution award unless the Court first makes a finding of abuse after a noticed hearing.  

This statute provides that the Court, after a noticed hearing and a finding that abuse occurred, may order the respondent to pay restitution for certain expenses and losses. Importantly, the Court must make a finding of abuse before awarding restitution under Fam C § 6342. In re Marriage of J.Q. & T.B. (2014) 223 Cal.App.4th 687, 703 (Marriage of J.Q.).

In Marriage of J.Q, the Fourth District Court of Appeal found that a trial court may award spousal support to an applying party prior to concluding that domestic violence has occurred. In discussing the history of Article 2 (Orders Issuable After Notice and Hearing) of the DVPA, the Court in Marriage of J.Q specifically explained that Fam C § 6342 is different than Family C § 6341 (spousal support provisions of the DVPA). The Court found that “by their plain language, both sections 6342 and 6343 contemplate a trial court made a determination domestic violence occurred.” Id. 703.

Marriage of J.Q provides the following instructive analysis: “Section 6342 governs orders for restitution to the petitioner for loss of earnings and out-of-pocket expenses as a result of abuse inflicted by respondent (§ 6342, subd. (a)(1)), restitution to the respondent for out-of-pocket expenses incurred as a result of an ex parte order that a court concludes is supported by insufficient evidence at a noticed hearing (§ 6342, subd. (a)(2))… By their plain language, both sections 6342 and 6343 contemplate a trial court made a determination domestic violence occurred, and both sections are included in Article 2, the same article as section 6341. Had the Legislature meant to require a finding of domestic violence, i.e., abuse, as a condition precedent to a spousal support award under section 6341, subdivision (c), we conclude the Legislature would have included it in section 6341 like it did under sections 6342 and 6343.” Id.

If you are considering a domestic violence restraining order, you can contact me at Amanda@gordonfamilylaw.com for more information.