Civil Judgement: How to Collect

Past Due billA man was awarded $11,500 by the court in attorney fees after being sued by his ex-wife. As of now, she refuses to pay any of the fees. What’s more, she has also quit her job. This man seeks advice on how he can collect the payments he was awarded. That wasn’t all, however. He brought up the topic of child support. Due to her recent quittance, the amount of money he pays in child support increased. He wonders if there is some sort of paperwork he can file to discontinue his payment of child support until she repays the judgement.

The first thing we made sure he understood: his obligation to pay child support is entirely independent of his ex’s obligation to pay the judgement. He can file a motion to reduce the child support because time share has changed, or his income has gone down, or income should be imputed to her because she has the ability and opportunity to work, but not because she refuses to pay the judgment. Now, the question of enforcing a judgement all together. Collecting a judgment from someone who isn’t working and has no money in the bank is difficult. If she’s collecting public assistance, he can’t get his hands on it. Perhaps she has a car with equity in it, or expensive jewelry. He can send the Sheriff to ‘execute the judgment,’ or ‘levy,’ by seizing things like that, but they may turn out to be exempt if she argues about it. Threatening her with that might get her to start paying the fees, but it sounds as if she’s a tough cookie. This man needs to consult a lawyer and tell the lawyer everything he knows about her assets.

For more information on how to collect payment from a judgement and more, please visit our website: http://stanprowse.com/enforcing-a-judgement

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Lease Agreements: What Happens in Divorce?

Mani con chiave sfondo azzurroA man recently approached us with a complicated situation. Though he and his wife mutually agreed that divorce was in their family’s best interest, her reaction was negative to say the least when he served her with divorce papers.  She promptly threatened to give 30 day notice to dissolve the lease agreement on the condo the couple rent, which, problematically for the husband, is leased only in her name. After those 30 days, she plans to move to another town, into an apartment where she has already cosigned a lease with her new boyfriend. To add fuel to the fire, the couple share a 12 year old daughter who wishes to remain with the father because she is afraid of her mother’s boyfriend. Of course, the mother wants custody of the daughter. This man states he can’t afford the rent on his own, and he believes his wife is trying to put him on the streets. His questions: Can she just throw him out? Can she just end the lease?

The leasehold interest, although hers as far as the landlord is concerned, is community property, so it therefore belongs to both the wife and the husband. Legally, her ability to evict him as a subtenant is exceedingly dismal. If she proposes to stop paying the rent and move out herself, that might be prohibited under the automatic restraining orders printed on the second page of his petition, because she’d be disposing of community property without his consent. However, we of course had to give him the honest truth about this situation. This type of discrepancy is highly technical and academic; dealing with it in a divorce case would be time consuming, and the result problematic. The reality is that if no one is paying the rent, he’ll have the landlord evicting him, no matter the status of his wife. The best thing for this man to do for himself and his daughter is to find a place to live that he can afford. That way, he isn’t dependent on the actions of his soon to be ex wife.

For more information on community property, as well as tenant protection, please visit their following respective pages on our website: http://stanprowse.com/community-property and http://stanprowse.com/real-estate-law/landlord-tenant-law

 

Alimony: What’s taken into (or out of your) account?

moneyGoing through a divorce is never fun. There’s no sense in denying that. The best thing you can do is work hard to succeed in other aspects of your life. For example, a potential client recently came forward with some good news despite his in-process divorce. He’s been promoted, and starts a new job with a signifciantly higher salary next week. His concern regards alimony. When he filed for divorce earlier this year, he was making considerably less money. The couple has yet to go before the judge and finalize their divorce; the date is set for later in the month. So, will alimony be calculated from his reported earnings when he initially filled for divorce, or will it be based on the higher salary he is about to receive?

We started by informing this man that he is under a fiduciary responsibility to inform his soon to be ex-spouse regarding his change in income. The question of whether his new income will be the exclusive number considered in setting spousal support is another matter. The average of the last twelve months earnings is statutorily presumed to be a proper basis. Some judges stubbornly stick to that even under situations such as the one this man is in.  Since he will have already started his new job, and if it is likely to be a long term position, I expect his judge will probably use his prospective income when it comes to his ability to pay, one of the factors the judge must consider. However, the primary factor is the standard of living during the marriage, which was undoubtedly based on this man’s previous income. There is no computer formula used for spousal support awarded in a final judgment, so there is in fact no “calculation” to be made by the judge. It’s a matter of weighing a number of factors set forth in Section 4320 of the Family Code.

For more information on calculating alimony and spousal support, please visit our website: http://stanprowse.com/spousal-support-california