QUESTIONS AND ANSWERS
These are selected questions from actual inquiries I received over the years. No names, of course. I edited them to minimize repetition. And I also edited the English to make it easier to read. Hope it's of help to you.
Prenuptial Agreement
Q: I am getting married this Saturday. I gave my fiancé a prenuptial agreement about a month ago but she refuses to sign it. What can I do to get her to sign it?
A: Prenuptial agreement is invalid and unenforceable unless it meets all the legal requirements. One of the requirements is that each party must have independent attorney to advice him/her. Another is that they must have the "final" version in hand for 7 days to reconsider before signing. Another is that it must be negotiated at arms-length and must not be signed under duress. If she has had it for a month and refused to sign it, she has some concerns about it. If she is not happy with the terms and/or the language, it's not the final version. If you are getting married this Saturday, neither of you will have 7 days to reconsider. If she is forced to sign it before Saturday, she can claim duress later. Since she does not have an attorney to advice her, her signature on that document will be meaningless. So, either you postpone the wedding or you forgo the prenuptial agreement.
However, don't despair. If you cannot postpone the wedding at this late date and choose to go through with it, you and she can still sign a post-marital agreement. Most of the same rules of prenuptial agreement apply with a few minor variations. You can try to work out the disagreement or get an attorney to help you work out the problems as you each have to get an independent attorney anyway. And there will be no deadline, such as the wedding, hanging over your head this time.
Paternity
Q: I was just served some paper for child support. I had no idea what is this about. I vaguely recall the name of the other person. Haven't seen her since. I seriously doubt that I am the father of the child. What should I do?
A: If you are not sure you are the father, be sure to challenge paternity. You have to file an OSC and request paternity test, or DNA test. If the probability is less than 98%, then you will be declared not the father and you are off the hook. If you are 99% or higher as "likely" to be the father, you will be declared the biological and legal father whether you like it or not. If you are declared the father, you will be required to pay child support as part of your parental obligations. But, of course, you can also request visitation as part of your parental rights.
Q: I was very happy when my daughter was born and signed the birth certificate. Now the mother won't have anything to do with me, won't speak to me, and let me see my daughter and told me she is not mine. I am devastated. What can I do?
A: You can declare you are the father by signing the birth certificate or the Paternity Opportunity Program (POP) declaration within the first 90 days of the child's birth. Once you have done that, you are the "legal parent" whether you are the biological parent or not. If she is denying you visitation, you should file an OSC for visitation and get a court order to grant you visitation. If she disagrees, let her go to court to say you are not the father and demand a DNA test. If you are not the father, then you are off the hook for child support and out of there. If you are the father, then she cannot deny you visitation even if she does not want to speak to you, but you also have to pay child support.
Proof Of Service
Q: I am serving in military overseas. Just got a letter from Child Support Services telling me I owe a lot of child support. This is the first I hear about it. What's going on?
A: First of all, people in active service in the military are protected by the "Soldiers And Sailors Civil Relief Act". During Civil War and WWI, many soldiers and sailors were surprised by lawsuits and judgments they never heard of when they returned home. As they were away on active duty, most of them in undisclosed locations, the other party claimed they could not be served so a default judgment was entered against them. To stop that abuse, the Congress passed the Act in 1918. It was updated in 1940 for WWII. It had since been updated several times, most recently in 2003. All civil suits must be held in reserve status until a notice can be property served on you and you have an opportunity to file your answer and present defense.
Then, the Civil Code said you cannot be held responsible for any judgment until you have been given "notice" of the lawsuit. If this is the first you hear about it, you should challenge the service and demand Proof of Service. If they cannot provide proper Proof of Service, then the judgment issued is invalid and must be set aside.
Custody and Visitation
Q: I want to get a divorce but my husband is threatening to take the children away from me. I am afraid to lose my children. What should I do?
A: Is your husband a family law judge? If not, don't listen to him. And how is he "threatening" you? Any verbal and physical threats that indicate potential "harm" to you and/or your children is actionable as Domestic Violence. Of course, the key word is "harm". Emotional distress is not enough, it must indicate violence. If you think there is any danger to you and/or your children, you should file for a restraining order.
All divorce cases in California is automatically submitted to a "mediation" session with the Conciliation Court. No, you don't have to "reconcile", just to sit down with a court employee, a trained custody mediator, to try to work out a "parenting plan" if possible. You can ask to be interviewed by the mediator separately if you are concerned about your husband coercing you into something you don't want to do. If you cannot reach an agreement, you can then ask the court for a "custody evaluation". But be warned that custody evaluation is invasive, lengthy, and costly. With attorney's help, as most family law attorneys are experienced custody negotiators, many parents often reach an agreement. If all else fail, the judge will rule on the custody issue. But, as a long time family law judge told the parents, "Take your time, go talk to each other and talk to your attorney, come up with something you can both live with. If you want me to make the custody decision for you, neither of you will like it."
Q: I am supposed to have visitation with my son. But my ex is coming up with one excuse after another and won't let me near him. And I hear that she is telling my son all sorts of terrible things about me and blame me for not seeing it. I am sick and tired of the whole thing. Does fathers have any rights?
A: Of course fathers have rights. That's why the law does not say, father, mother, husband, wife, etc. It says, parent, spouse, etc. so it's gender neutral. Fathers have custody in about 20% of the cases and many wives have to pay child support because they make more money.
If you have court order for visitation, then what she is doing is illegal. She is violating an existing enforceable court order. You can file for "Contempt" against her. Each time she refuses you a court ordered visitation is a separate contempt. Even though the laws says each contempt is subject to sanctions and/or jail time, courts never order jail time for such violations as our jails are over-crowed as is. But you can insist on sanctions. Be sure to keep a diary and record her excuses for refusing your visitation as evidence for contempt.
No parent is allowed to speak "disparagingly" about the other parent in front of, or within the hearing of, the children no matter how despicable the other parent is. That's the public policy and the rule. Do you have proof that she is bad-mouthing you in front of your son? If so, that's another count for "contempt".
Even though "Contempt" is civil in procedure but it is criminal in nature, therefore the legal requirement is high and the proofs have to be solid. To reserve it as the last resort, you can get a conformed copy of the filed and signed court order and highlight the section give you your visitation schedule. Next time, when she refuses you visitation, call the police and show them the court order and ask them to come with you to get your son. The down side, of course, is this can be quite traumatic for the child. It is your choice which option to proceed.
Q: My ex ran away with the children many years ago. I have had no contact with them since. Suddenly, I got a notice from Child Support Services telling me to pay child support to them and that I owe a lot of arrears. But they won't tell me where she is or where the children are because that's not part of their program. This is terribly wrong! Please help me!
A: Did you have a custody and visitation order when she disappeared with the children? If not, she is the parent and can go anywhere with the children. Did you file for custody immediately and ask the court to order the mother to return the children forthwith? If you didn't know where they went, you could still give "proper notice" via other legal means.
If there is a court order granting you custody and/or visitation, then what she did was child concealment and parental kidnapping, a criminal act. Did you report it to the DA's Office when that happened? Unfortunately, it happens more often than we would like to admit, that's why most DA's Offices have a "Child Abduction Unit".
If the parent who took off with the children to parts unknown have domestic violence concerns or a restraining order, he/she is required to notify the DA's Office within 10 days of disappearance. Most domestic violence shelters have counselors to help them with legal issues. If the concern is genuine, the courts will order the parent's and the children's address be veiled. If that's not the case, then she has no right to keep the children away from you or you from them.
No, Child Support Services cannot reveal the custodial parent's address or phone number. You must file an OSC, present your evidence, and try to obtain a court order for CSSD to do so. She, of course has the right to present evidence to the court why her whereabouts should remain hidden. It's up to the judge to review the case and decide.
Child concealment cancels out any child support obligations. She cannot deprive you of your parental right to see your children while demanding you to conform to your parental obligation to pay child support. There is a series of cases on this issue. The most recent one was in 1996 in which the court said no child support is owed during the period the mother willfully conceal the child from the father.
Child Support
Q: I am unemployed and have no money. The father makes about $12,000 a month. He said he will only give me $300 a month for child support. He has an attorney and won't talk to me. Since I have no money, I can't afford an attorney. What should I do?
A: Child support is the child's birthright. The father does not get to decide how much child support to pay. The law does. California uses a program called DissoMaster which calculates how much child support each parent is to contribute for the care of the child and how much the non-custodial parent is to pay the custodial parent as child support. It is based on each parent's monthly gross income (before tax and pre-tax deductibles), tax status, and time share. If he makes $12,000 a month income and you are unemployed, even if he has 49% custody of the child, he owes you a lot more than $300 a month.
"I have no money for attorney" is never a good defense, much less a legal one. Everyone has money for what they want to do but no one has money for what they don't want to do. How important is this to you? Is your child important enough to you for you to fight for his/her birthright? He has an attorney to help him and look out for his legal rights. Are you well informed enough to pursue your child's birthright on your own in pro per? Are you savvy enough to deal with his attorney on your own? If not, "I have no money for an attorney" will not cut it.
As you are unemployed and he has substantial income, it is likely that you will get some of your attorney fees reimbursed after the case is over and a child support is ordered so the court can review your overall financial situation and make a determination of the amount to be reimbursed. However, after being burned a few times by sob stories, after a client with a lying and cheating husband and with a sick child filed chapter 7 bankruptcy on me, I will no longer finance my client's litigations and must insist on a retainer fee up front. Attorney fee "reimbursement" is just that, a "reimbursement" to you.
I hate to see you getting trampled by your child's father and his attorney. When people are in trouble, they turn to their friends and family for help. Isn't that what friends and family for? As you are sitting on a potential pretty decent amount of child support, surely your friends and family will come to your help. I take VISA and MC for my retainer fees so you can manage the payment plan as it best suits your financial situation.
Q: I got a billing statement from Child Support Services saying I still owe them child support even though all my children have turned 18 some years ago. And they are still taking my tax returns. What can I do?
A: Even though child support terminates when each child turns 18, but child support arrears never expires. They cannot be discharged by bankruptcy either. Besides, CA law says all money judgment automatically carries a 10% interest on all money unpaid. Many custodial parents don't know that and don't enforce it. But Child Support Services accounting program calculates the 10% interest automatically. And it can add up quickly. Some people owe $30,000 arrears in principal but $40,000 arrears in interest. Once the child turns 18, the principal arrears may remain the same, but the interest arrears keep growing.
Child Support Services programs are monitored and audited by the State agency. One of the "full enforcement" requirements is that they must automatically submit all arrears cases to IRS and FTB to intercept taxes. That's why your taxes have been intercepted.
If you think the billing statement is incorrect, as many of them are, you have the right to file an OSC to request an audit to determine arrears. However, it is your duty to produce your own audit to compare with the one CSSD produces to determine the discrepancy. And it is your duty to present "proof of payment" for all disputed items.
Spousal Support
Q: My ex owes me tons of spousal support. We were married 26 years and I got an order for life-time spousal support. He stopped paying after 2 years. Then he sold his business and "retired". That was 14 years ago. Now that I am retired and really need that money, he said "over my dead body". What can I do?
A: Spousal support arrears, like child support arrears, never expire. They go on even after death until collected in full. Spousal support, like child support and any other California money judgment, is subject to 10% interest on all arrears.
If there is still child support in issue, you can open a case in Child Support Services and ask them to enforce your spousal support along with your child support. If you don't have any child support arrears, then they cannot enforce your spousal support for you.
Does he have any property? You can place a lien on his property by filing an Abstract of Judgment on every property so whenever he tries to sell any, the escrow will have to pay you off first. What kind of "retirement plan" is he on? You can file for a court order to attach his retirement plan so the administrator will pay you from his monthly payment every time they pay him.
