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My ex-spouse will not pay child support. Child support is not supposed to be a voluntary commitment for divorced parents. Courts often order one parent to make payments to the ex-spouse who is primarily raising their children, for the express purpose of supporting those children. However, sometimes the parent falls behind and does not meet their child support obligations. There are many reasons why this would happen, such as loss of employment, illness or injury, or simple laziness. But no matter the reason, the parent who should be on the receiving end of the child support will want to know how to get the money they are owed.

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How to Get an Ex-Spouse to Pay Child Support

There are a variety of ways a parent can go about compelling their ex-spouse to pay their court-ordered child support. Among the possible courses of action are the following:

1.    Enter into a private agreement with your ex-spouse: If your ex-spouse genuinely cannot make the court-mandated child support payments, whether due to lack of income, illness, or injury, you can always work out a private agreement that reduces or suspends the payments while your ex tries to get back on their feet. Family courts will generally allow these side agreements and will refrain from enforcing their own orders while the private contract is in effect. However, you should be clear with both your ex and the court that, if the ex does not resume making payments when they are supposed to, you will go back to court to force them to do so. You will probably want to hire a family law attorney to draft an agreement of this sort.

2.    Go to mediation: If you want to address the child support issue in a formal setting without actually going to court, mediation might be a good route. Mediation is less adversarial and less expensive than family court, which is why more and more couples are using this option. Agreements reached in mediation can be more flexible and creative than court-ordered remedies. There are probably a number of licensed mediators in your area, and you can usually get a list from your local court.

3.    Take your ex-spouse to court: This is the most drastic, but probably also the most effective, of your options. You can hire a lawyer and return to family court for a contempt proceeding against your ex-spouse. If you can show that your ex is not meeting their court-ordered obligations, the court will try to find a way to compel them to pay the child support. One way the court may do this is through wage garnishment, where a percentage of the person’s wages are automatically diverted to the court and then to you. Many divorced parents hesitate to take their ex-spouses to court any more often than they have to, but if the well-being of your children is at stake, it may be the only viable alternative.

What to Do if Your Ex-Spouse Will Not Pay Child Support

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The role of co-parenting after divorce. A divorce or separation can be extremely difficult on a couple’s children. All of a sudden, the kids go from living in a seemingly stable two-parent household to being caught in the middle of a bitter break-up. In particular, having to go back and forth between the father’s house and the mother’s house can be a traumatic change. There is no way to completely shield children from the negative effects of this process. However, by putting in place a good co-parenting plan, the separating couple can ease some of the difficulty for their children.

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Strategies for an Effective Co-Parenting Arrangement

Here are some suggestions for creating a co-parenting arrangement that works for everyone:

1.    Put your children first: Always remember that your children’s interests are the most important consideration. Their childhood experiences will shape them for the rest of their lives, so it is imperative that you protect them from conflict and negativity as much as possible.

2.    Get a court order: This will make your co-parenting plan legally enforceable, meaning you will have a remedy in the event that your ex violates the terms of the agreement.

3.    Live near your ex: Whenever possible, it is advisable for the two parents to live near each other, so that the children can regularly and easily spend time with both of them.

4.    Respect each other’s parenting style: While the couple’s parenting styles may differ significantly, it is desirable that they respect each other’s methods. Otherwise, they end up undermining each other and confusing their children when it comes to expectations and boundaries.

5.    Communicate with each other: Both parents need to be able to communicate regularly and effectively, so that you both know what is going on in your children’s lives. This will help avoid misunderstandings, both with each other and with your children.

6.    Stay involved in your children’s activities: Both parents should stay as involved as possible in their kids’ school and extracurricular activities. Even if the parents would prefer not to be near each other, it is important that they can be civil with each other when they are in public or with their children.

7.    Create a shared document that both parents can access:  You should develop a Google Doc or other cloud-based document that both parents can access and utilize to share information about their kids. You can use this document to, among other things, coordinate scheduling and maintain emergency contact numbers.

8.    Hire an attorney: Each parent should hire their own attorney who has experience drafting co-parenting plans. Having an attorney on retainer will come in especially handy if there are child support or custody issues involved in the divorce or separation.

What to Do if You Have Children and Are Separating from Your Spouse

If you have children and are going through a divorce or separation with your spouse, you should contact an attorney immediately. An attorney can review the facts of your case and provide you with advice and guidance regarding your concerns.

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BODE MILLER CHILD CUSTODY DISPUTE CASE MAY HAVE MAJOR IMPLICATIONS

CHILD CUSTODY BASICS

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You may have seen the cursing toddler viral video of a two-year-old Omaha, Nebraska, toddler repeating curse words as a group of adults teach him and cheer him on. The video was released by the Omaha Police Department, ostensibly as a way of drawing attention to some of the problems the city faces. The video sparked outrage, directed at both the police for releasing the video, and the boy’s mother for putting her son into that environment. Some people even accused the 17-year-old mother of child endangerment, and demanded that the state forcibly remove the child from the mother’s custody.

SwearingCursing toddler to remain with mother

The mother did not make matters any better when she defended her son and herself from critics, stating that she was out of the room when filming occurred and that her son does not normally talk that way. However, an Omaha juvenile court judge ruled that the mother can maintain custody of her son, and both mother and son would be placed with the same foster family. After the video went viral, the mother and son were both removed from their home and placed in child protective custody. Their removal actually had very little to do with the video. Authorities said adults in the household “repeatedly allowed known gang members into their home.” At one point the state even tried to help relocate the family out of Omaha.

Child Endangerment Can Lead to Parents Losing Children

The state can take a child from his parents if it determines that the child has been severely neglected or abused. This can take many forms, such as ignoring a child’s medical needs, allowing him to become obese, expressing extreme disinterest in the child, or inflicting severe emotional damage to the child. In this case, the mother allowed her child to have continual contact with adults who clearly were not interested in the child’s well-being, and actively inflicted emotional harm on him. The judge apparently determined that the mother was more a victim than victimizer, and therefore should not lose custody of her son.

There are other factors that often lead to parents losing custody of their children. One is abandonment, in which the parent or parents simply leave the child on the street, with a relative, or with a foster family. Along the same lines, parents who fail to support or maintain contact with their children can lose custody. Parents who suffer from long-term mental illness or addiction can have their children removed from the home if the state determines that such action is in the best interests of the children. Long-term incarceration can lead to loss of custody, for obvious reasons. Finally, failure to follow the directives of child services can result in a loss of custody.

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Can we all agree that fathers who do not have custody of their children have an obligation to support the kids through paying child support? The amount of child support each parent has to pay is generally set by a family court, with the judge factoring in each parent’s income, among other things. When fathers refuse to pay child support over a long period of time, they can be punished by being sent to jail. This is generally a last resort, after wage garnishment and other methods fail to exact the money the children need.

Children

But what can we make of a father who pays all of the child support he owes, but still winds up in jail? That is exactly what happened last November to a father in Houston, Texas. According to the father, the court increased his child support obligations without notifying his employer. As a result, his wage garnishments did not cover the full amount he owed in child support. His attorney claims that this was the result of an administrative error by the court, and meant that the deductions from the father’s paycheck were inconsistent and erratic.

Judge Sentenced Father to Jail for Contempt

When the mother’s attorney informed the father that he owed $3,000 in back child support, his lawyer initially advised him not to pay it, believing it was excessive. In addition, the mother claimed that the father was not complying with the court’s scheduled times to pick up their son for visitations. The father again stated that he knew nothing about this modification by the court. When he became aware of the discrepancy between the amount owed and the wage garnishments, the father went ahead and paid the nearly $3,000.

By the time the father appeared in court in November, his payments were caught up. But the mother’s attorney brought up the visitation times issue, and also demanded that the father pay $3,000 in attorney fees. The judge apparently agreed with the mother’s side of the story, and held the father in contempt. The father then walked out of the courtroom, further angering the judge. The judge ultimately sentenced the father to six months in jail.

Jail Sentence Is Consistent with New Texas Statute

Until last year, Texas law prevented a parent from being jailed for not paying child support if the parent was paid up at the time of the hearing. However, the Texas legislature recently repealed that provision, giving judges the discretion to punish repeat offenders. The repeal was intended to prevent delinquent parents from waiting until the day before a hearing to pay up on child support. The father in this case, who had been jailed in the past for failure to pay child support, was perceived by the judge to be a repeat offender, and therefore was put in jail in accordance with the law.

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Bode Miller and his ex-girlfriend are engaged in a unique custody dispute that could have major consequences for this area of law. Many Americans watched skier Bode Miller compete in the Sochi Winter Olympics over the past two weeks, as he capped off his legendary career with a bronze medal in the Super G event. He also generated a great deal of sympathy from viewers around the world when he broke down in tears during his post-race interview. But a custody dispute story involving Miller has made headlines in the world of family law, even as it was swept aside during the television coverage of the Olympics.

Skier The conflict centers on Miller’s ex-girlfriend’s decision to move to another state while she was pregnant with Miller’s child, but after they had broken up. The issue is whether she had a right to do this and what implications her decision has for deciding custody of the child.

Custody Dispute initiated in Moving From California to New York

Miller, who lives in southern California, dated the mother of his child for a few months in 2012. Before they broke up, she became pregnant with his son. In November 2012, Miller (who had married another woman by this point) filed a “Petition to Establish Parental Relationship” in California. The next month, while she was seven months pregnant, the mother moved to New York in order to attend Columbia University.

Two days after the baby was born in February 2013, the mother went to a New York Family Court to petition for custody. Under New York law, the child’s “home state” has jurisdiction over any custody case that arises. However, the family judge ruled that the case should be sent to California, accusing the mother of moving to New York for the purpose of finding a more friendly court. The California family court then awarded custody to Miller and his wife.

The mother appealed the New York decision, and a five-judge panel ruled in November 2013 that her rights had been violated and that New York should have jurisdiction over the case. Since then, California and New York have been engaged in a legal dispute over jurisdiction, with the parties caught in the middle. The baby has mostly remained with Miller and his wife, with the mother getting occasional visitation.

Outcome Could Shape Future Custody Disputes

Most likely, the courts will eventually determine that New York should have jurisdiction, since the mother moved there before the baby was born. If Miller wants to contest custody, he may have to do so in New York courts. However, that will still leave the thornier issue of how to deal with custody when, after a baby’s birth, one parent wants to move far away and the other wants to play an active role in the child’s life. Perhaps this case will provide some clarity for these disputes moving forward.

What to Do if You Are Involved in a Custody Dispute

If you are involved in a custody dispute with a former partner, you should contact a family law attorney immediately. An attorney can review the facts of your case and provide you with advice and guidance regarding your concerns.

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Child Custody Basics

New California Child Custody Legislation Allows More Than Two Individuals to be Recognized as a Child’s Legal Parents

Photo Credit: ClickFlashPhotos / Nicki Varkevisser via Compfight cc

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Same sex couple married in CA seeks same sex divorce in Mississippi. Simple? Not exactly.

Lauren Beth Czekala-Chatham asked a Mississippi court to recognize her same sex marriage, which took place in California, so that she could file for divorce within the State. Although the couple was married in California, they resided in Mississippi for the duration of their marriage. Czekala-Chatham could file for divorce in California because the State exempts same sex couples from residency requirements that ordinarily require at least one divorcing spouse to be a California resident for six months prior to filing. In part, this is so same sex couples who marry in California but reside in states where their marriage is not legally recognized do not have to face the burden of establishing residency before they can file for divorce. However, California courts will not always be able to issue significant rulings related to property ownership, debt, alimony, or children.
Because California cannot issue certain rulings regarding property ownership, debt, alimony, and children, it is not a viable option for some divorcing same sex couples.
In a telephone interview, Czekala-Chatham explained that failing to get divorced could have serious repercussions. Czekala-Chatham has children from a prior relationship and is concerned that her spouse could contest her will and take her children’s inheritance if they failed to get a divorce. According to court filings, Czekala-Chatham is seeking the couple’s marital home in Mississippi as well as, alimony in the divorce. Czekala-Catham says she will go all the way to the State’s Supreme Court in order to have her same sex marriage recognized because she doesn’t see another way out of the situation. If the State were to recognize her marriage, it would not permit same sex marriages in Mississippi, which remain banned under Mississippi law.

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Since the U.S. Supreme Court stuck down parts of the Defense of Marriage Act, several states have faced similar requests.
Several other states which have bans on gay marriage have been faced with similar requests since the U.S. Supreme Court struck downs segments of the federal Defense of Marriage Act earlier this summer. For instance, the Texas Supreme Court is considering whether it has jurisdiction over same sex divorce cases, even though it does not allow same sex marriage. Oral arguments are scheduled for next month. At least two same sex couples have filed for divorce in the State.
However, Mississippi College constitutional law professor, Matt Steffey says the Mississippi case is a long shot because the right does not exist within Mississippi law. He believes the issue of same sex divorce will eventually reach the U.S. Supreme Court.
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In a (perhaps temporary) blow to gay couples and Utah same-sex marriage advocates, the United States Supreme Court has granted a stay on a federal district court judge’s decision overturning Utah’s gay marriage ban. According to a story in The Salt Lake Tribune, the Supreme Court’s ruling, which came down on Monday, will effectively halt same-sex marriages in Utah for the time being.

The district court judge’s decision legalizing gay marriage in Utah came down about three weeks ago, and surprised observers both in Utah and around the country. Overnight, one of nation’s most conservative states was granting marriage licenses to same-sex couples. However, the state plans to appeal the ruling to the 10th Circuit Court of Appeals and, if that fails, all the way to the Supreme Court. The stay means that no more same-sex marriage licenses will be issued in Utah at least until after the 10th Circuit rules on the appeal.

Judge and Gavel

Stay Puts Married Same-sex Couples in Limbo

Many same-sex couples were married during the three-week period between the district court ruling and the Supreme Court stay. The legal status of those couples, in terms of their rights and their ability to receive government benefits, is unclear for now, and no more gay couples can get married until the higher courts sort out the appeals. The Supreme Court’s decision came after both the district court and the 10th Circuit declined to grant stays. An attorney for the Utah same-sex couples who originally sued in district court, objected to the stay and was quoted as saying, “every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Similarities and Differences with California Decisions

Utah is the second state in the nation, after California, to have a federal court strike down its law banning same-sex marriage. In California, a district court judge found Proposition 8, the 2008 ballot initiative that banned same-sex marriage, to be unconstitutional. In that case, the district court imposed an immediate stay on the ruling until the issue could be resolved by the higher courts on appeal.

That stay prevented the situation we now see in Utah, where couples may eventually have their marriage licenses revoked, even though they followed the law on the books at the time they were married. It ultimately took about three years for the California case to go from the district court to the U.S. Supreme Court. The district court’s decision overturning Proposition 8 was affirmed by the Supreme Court last year in Hollingsworth v. Perry. It is very possible that the Utah case will take just as long to resolve.

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Back in June of 2010, New York became the 50th and last state to pass some form of No-Fault Divorce Legislation, 40 years after that of California.  What with the recent debates over same-sex marriage and, now, polygamy have raised questions about the nature of marriage and how the institution of marriage has evolved over time. Progressives generally favor a more expansive and inclusive definition of marriage, with the institution adapting to changing social conditions. Conservatives warn that there could be negative and unforeseen consequences to these changes, and that therefore we should tread lightly when it comes to modifying such an esteemed human institution.

Ring in Book

However, it is possible that both sides are ignoring a much older and more consequential change to our marriage laws. Since 1969, all the states, one by one, have reformed their family law codes to allow for no-fault divorce. Traditionally, American courts would only grant a divorce after establishing that one party had committed a breach of the marital contract. No-fault divorce, in contrast, is dissolution of marriage that does not require a showing of wrongdoing by either party.

A Brief History of No-fault Divorce

The earliest known examples of no-fault divorces occurred in Russia shortly after the Bolshevik Revolution. The decrees providing for no-fault divorce were seen at the time as revolutionary attempts to deemphasize marriage in the Soviet Union. In the United States, the Sexual Revolution, feminist movement, and anti-establishment sentiment of the 1960s helped place the idea of no-fault divorce on the political agenda.

In 1967, the National Conference of Commissioners on Uniform State Laws was tasked with drafting a uniform marriage and divorce code for consideration by state legislatures. The various drafts of the NCCUSL’s uniform code all liberalized the current divorce laws on the books in most states. This code had no binding impact on state legislatures, but was deeply influential on family law statutes from the time it was first drafted.

Two years after the NCCUSL began meeting, the California state legislature passed the California Family Law Act of 1969. The Act was signed into law by Governor Ronald Reagan on January 1, 1970, and included a provision allowing for dissolution of marriage when one party cited irreconcilable differences. This effectively made California the first state to allow for no-fault divorce and as previously mentioned, 40 years later, in 2010, New York became the last state in the US to pass a no-fault divorce statute.

While there are still some who argue against no-fault divorce, it is now the law of the land in California and the rest of the country. There is no question that it has made divorce easier, particularly for those who lack power or control in their respective marriages. Continue reading →

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Utah’s anti-polygamy law was ruled unconstitutional this month when a federal district court judge in Utah struck down the state’s prohibition of “cohabitation,” perhaps opening the door for the eventual legalization of polygamous marriage. The case continues the recent trend, in courts and in the nation as a whole, toward changing the way we think about marriage and the regulation of personal relationships by the government.

Polygamy Hands

The challenge to the Utah statute was brought by a Utah man (and reality television star) who lives with his four wives and 17 children. The court found that, under the First Amendment’s guarantee of the free exercise of religion, the statute’s language banning “cohabitation” is unconstitutional. The state can still prohibit actual polygamy by not allowing anyone to have more than one valid marriage license. However, the decision may pave the way for the legalization of polygamy sooner rather than later.

Another Significant Change to Domestic Relations Law 

The decision is the latest in a line of cases, from Lawrence v. Texas in 2003 through US v. Windsor earlier this year, in which the federal courts have expanded the right to privacy and limited the government’s ability to regulate private sexual behavior. The Utah court specifically cited Lawrence, which struck down anti-sodomy laws in Texas. In that case, the majority opinion stated that the Constitution protects people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

The dissent in Lawrence famously argued that the decision would inevitably lead to the legalization of same-sex marriage, polygamy, and other non-traditional familial arrangements and sexual practices. If marriage is nothing more than a matter of choice by consenting parties, reasoned the dissent, then there is no basis for limiting it to opposite-sex couples or to just two people.

In Windsor, the Supreme Court found the Defense of Marriage Act unconstitutional, essentially requiring the federal government and state governments to recognize same-sex marriages from other states. Once again, critics predicted a “slippery slope” in which anti-polygamy laws would no longer stand up to constitutional scrutiny. If decisions about who can get married belong exclusively to the individuals involved, rather than to the community or government, then any regulation of those consensual decisions becomes intrusive.

The plaintiffs’ attorney in the Utah case, however, disagreed with the dissenting opinions in Lawrence and Windsor. He argued that those cases and the Utah decision ultimately come down to privacy, and to each person’s “right to be left alone as consenting adults.” People should be able to do whatever they want in their own homes, as long as they do not harm others. The government, the attorney argued, should not interfere with what its citizens do behind closed doors.

What to Do if You Want to Enter into a Non-traditional Marriage

Since the Utah decision relied on federal law, it would be equally applicable in California and other states. Continue reading →

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As any divorced parent with children knows, calculating child support payments is a complicated and messy process. In some states, when a divorced spouse remarries, this changes the amount of child support that the newly married spouse either gives or receives. Some legal analysts do not believe that a stepparent should be responsible for child support payments which go directly to the spouse’s former spouse.

The California Statute 

To address this issue, in 1994 California passed Family Code Section 4057.5, which includes guidelines for determining child support payments. Before the passage of this statute, courts were allowed to take new spouse income into account when calculating child support payments owed to the former spouse. This practice effectively required new spouses to donate a percentage of their incomes to their spouse’s children and former spouse.

Little BoyThe 1994 statute banned judges from including new spouse income in child support calculations. Courts can only consider the income of the parent, except in extraordinary cases “”where excluding that income would lead to extreme and severe hardship to any child subject to the child support award.” This appears to be a fair way of avoiding all sorts of conflicts and inequities that could arise if new spouse income were still included in the calculations.

The Problem

However, there is at least one catch. Assume that after a divorce, one parent remarries and the other does not. So we have three individuals involved in a child support situation: the former spouse, the parent spouse, and the new spouse. The child support guidelines use after-tax income to determine payment amounts.

California is a community property state, meaning roughly that each spouse owns one half of the assets that both spouses have acquired since getting married. So the parent spouse must include one half of the community property income in their income tax return. Regardless of how they file, the new spouse’s income could push the parent spouse into a higher tax bracket than they otherwise would have been in. This in turn decreases their after-tax income.

According to a recent article in the Huffington Post, this system is fundamentally unfair to the former spouse. If the parent spouse ends up taking home less money simply because the new spouse makes more money, this can increase the amount of child support the former spouse owes to the parent spouse. In other words, by getting married to someone who makes a decent living, the parent spouse may be entitled to receive more child support from the former spouse.

Child Support Payments – What to Do

The system essentially punishes the former spouse and rewards the parent spouse for the marriage between the parent spouse and new spouse. One way to address the inequity created by the California child support statute would be to use before-tax income rather than after-tax income when calculating each parent’s obligations.

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