My spouse won’t complete their financial disclosures, what should I do?

Experienced Bay Area family law attorneys will tell clients that if a party fails to serve declarations of disclosure, the first step for the complying party is to informally request the noncomplying party prepare the declaration of disclosure. FC §2107(a). If the informal request is unsuccessful, then the complying party may file one or more of the following motions:

1. Motion to compel further responses. FC §2107(b)(1)

2. Motion for an order preventing the noncomplying party from presenting evidence onissues that should have been disclosed. FC §2107(b)(2).

If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.

Does Cohabitation constitute a change of circumstances to modify support?

Yes. A supported spouse's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption of proof of decreased need for spousal support.

Under the family code,"Cohabitation" means more than a roommate relationship; the statute contemplates a personal, romantic relationship. 

That being said, even a simple boarding arrangement under which expenses are shared or rent received may reduce the need for support and thereby constitute changed circumstances. Cohabitation may reduce the need for spousal support because sharing a household reduces the expenses of the supported spouse. Additionally, the cohabitant's income may be available to the supported spouse. 

Courts have found that an earlier determination that a spouse was merely a roommate does not preclude a court from later recognizing a change in the relationship and determining that the roommates are cohabiting. The change in the relationship constitutes a change of circumstances warranting a review of the existing spousal support award. In re Marriage of Bower, 96 Cal. App. 4th 893, (2d Dist. 2002).

A supporting spouse's cohabitation does not have the same impact on a case. The income of a supporting spouse's subsequent spouse or nonmarital partner will not be considered when determining or modifying spousal support. FC § 4323 (b). The provision was intended to exclude both direct and indirect consideration of new mate income. In re Marriage of Romero, 99 Cal. App. 4th 436, (4th Dist. 2002). 

While the statute does not expressly address expenses, it has been held that not only must new spouse income be disregarded but also the  additional expenses resulting from the remarriage. In re Marriage of Romero, 99 Cal. App. 4th 1436, 122 Cal. Rptr. 2d 220 (4th Dist. 2002).

If you are receiving spousal support and are considering moving in with a friend/partner, keep in mind that your ex could make a motion to reduce support. If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.

Will spousal support be reduced when I retire?

Most likely. 

A supporting spouse's attainment of retirement age may constitute a material change of circumstances for purposes of a motion to modify a spousal support order.  This depends on the nature of employment, whether the supporting spousal will receive a pension, and what terms are included in the Marital Settlement Agreement. 

A material change in circumstances has been found when the supported spousal became old enough to access a retirement fund without penalty and where the accessibility and possible increase in value of the obligee's share of the retirement accounts were part of the parties' expressed reasonable expectations in entering the stipulated judgment. In re Marriage of Dietz, 176 Cal. App. 4th 387, 97 Cal. Rptr. 3d 616 (4th Dist. 2009), as modified, (Sept. 2, 2009)

If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.

Grandparent Visitation

A grandparent can ask the court for reasonable visitation with a grandchild. 

To give a grandparent reasonable visitation with a grandchild, the court must find: (1) a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”  This means that there is such a bond between grandparent and grandchild that visitation is in best interest of the grandchild; and (2) Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.

In general, grandparents cannot file for visitation rights while the grandchild’s parents are married. 

But there are exceptions, like: (a) The parents are living separately; (b) A parent’s whereabouts are unknown (and have been for at least a month); (c) One of the parents joins the grandparent’s petition for visitation; (d) The child does not live with either of his or her parents; or (e) The grandchild has been adopted by a stepparent.

Under Fam C §3104, there is a rebuttable presumption that grandparent visitation is not in a child's best interest if the child's natural or adoptive parents agree that the grandparent should not have visitation rights.  However, The rebuttable presumption in Fam C §3104(e) against grandparent visitation may be overcome by a finding that the best interest of the child is supported by such visitation, even over the wishes of two fit parents. Such a finding does not violate a parent's federal or state substantive due process rights. Stuard v Stuard (2016) 244 CA4th 768, 786 (parenting prerogative is broad but not unlimited, and does not extend to denying child's best interests in preserving important and continuing relationship with grandparents to whom she was very close).

Can the Family Court require Drug Testing?

Experienced family law attorneys in San Francisco will tell their clients that the Court can require drug testing if there is proof of substance abuse.  A recent 2016 case in California found that it is not a violation of Fam C §3041.5 to require a parent to submit to drug testing indefinitely as a condition of increased and eventual unmonitored visitation, and to order that a positive or missed drug or alcohol test would trigger a return to limited monitored visitation. Heidi S. v David H. (2016) 1 CA5th 1150.  

If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.