How Not To Serve Court Papers (especially on a Red Sox pitcher)

From The Docket, the Massachusetts Lawyers Weekly blog, David Frank brings us this interesting story behind the Red Sox loss yesterday to the Orioles:   a civil process server showed up at Fenway Park and served child support papers on Red Sox starting pitcher Erik Bedard a few hours before the pitcher was scheduled to take the mound.  


Don't the Red Sox have enough problems right now?  And

Fathers and Child Support Obligations

[Photo from mtephraimschools.org]

As Augusta, Georgia divorce lawyers, we often help our clients address issues involving child support, including contempt and child support modification actions.  After all, not all fathers pay child support like they should.  But as we approach Father's Day, perhaps it is important to recognize that most dads "out there," following a divorce, actually support their children, as they should, financially and otherwise.  The "deadbeat dads" exist, but, fortunately, they are in a minority. 

Indeed, according to one source, http://fathersrights.org/, 79.1% of fathers having limited visitation rights pay their court-ordered child support and 44.5% of those fathers having no visitation rights at all nonetheless still pay child support.

Of course, no one is suggesting that, simply because they pay child support, those fathers, (or any non-custodial parents), deserve any special reward.  After all, those dads helped bring these kids into the world, too, and it is their legal and moral obligation to help support their children.  Also, I'll bet that most of us would agree that the true "deadbeat dads" should be severely sanctioned.  But sometimes, I believe it is also important to keep things in perspective, including the point that most non-custodial parents "out there" are, in fact, supporting their kids and doing the right thing!   What do you think?

Divorce, Judicial Discretion, and Square Rocks

On my desk, at The Goolsby Law Firm, LLC, located in Augusta, Georgia, sits this square rock!  (I guess that, technically, the rock would be considered a cube)!  What does a square rock have to do with a divorce-related blog?  Consider the following point.

Although family law judges generally follow guidelines which normally apply to most divorce or child custody cases, it is important to recognize that they also generally retain some discretion to deviate from the norm.  And there is a good reason for this judicial discretion.  Simply put, not all people and not all divorce cases are alike.  Just as most rocks are round, occasionally, you run across one that is square!  For instance, Georgia's child support guidelines might dictate that a parent should pay a certain prescribed amount of child support.  However, a judge is granted discretion to deviate from the prescribed amount if, for example, the parent is temporarily unemployed, or otherwise has lower income.

Frankly, as a divorce attorney, I am glad that judges retain some discretion to depart from the norm.  After all, not all of us rocks are round!  Don't you agree?

What is a Family Law contempt action?

A Family Law contempt action can be Civil or Criminal. In a civil contempt the goal is to have corrective measures take place, whereas in a criminal contempt matter the Citee maybe sentenced to five (5) days in jail for each count. The jail sentence is imposed for the willful disobedience of a valid court order, the Citee must have knowledge of the valid court order. If a Contempt action has been filed against you call the Law Offices of Bettina L. Yanez & Associates, for a free thirty (30) minute consultation.

For example in a Child Support Contempt action, your ability to pay Child Support was determined when the original child support order was made. Thus, your inability to pay your child support is an affirmative defense that must be proved by the Citee.

A Family Law Contempt action is begun by filing the charging document form FL-410, Order To Show Cause, on the seventh floor Family Law Clerks Office. Facts that constitute the contempt are alleged in the affidavit of facts indicating the kind of order that was violated, the date the order was entered and how the violation occurred. [California Code of Civil Procedure § 1211(a)]

A family law contempt action must be personally served on the Citee at least 21 days before the hearing. You or you attorney must appear at the arraignment hearing. If you do not appear in person or by counsel, a bench warrant can be issued. At the Arraignment you will enter a plea of guilt or not guilty and a pre trial date will be set.

At the pre trial a plea may be offered by County Counsel and if a plea is taken, your sentenced will be suspended and you will be placed an three (3) years probation. If you do not accept the plea your case will be set for a hearing. If you do not comply with the terms of your Plea the Department of Child Support Services can file a Petition to Revoke your Probation and the court can impose all or a portion of the suspended sentence.

Divorce Checklist: Planning For A Divorce

As divorce attorneys in Augusta, Georgia, every day, we talk with people who are thinking about, or in the process of, going through a divorce.  Of course, you don't have to be a divorce lawyer to realize that it might be helpful, if you are contemplating a divorce, for you to take steps to be prepared for it.  Here are a couple of practical tips for you to consider and for you to discuss with your own divorce attorney:

1.  GATHER FINANCIAL RECORDS:

If you are seriously considering a divorce, then you need to begin gathering all your financial records.  For instance, go ahead and try to put your hands on copies of your house deed, car titles, job earnings statements, (for both you and your spouse), credit card and loan documents, and copies of retirement account statements.  These documents will help you and your divorce lawyer to size up your financial situation, as you plan for your divorce.

2.  PLAN A BUDGET:

If you are thinking about getting a divorce, you also should sit down and plan a budget composed of what your expected monthly living expenses will be following the divorce.  Although some items, such as rent, groceries, or utilities, will be difficult to project, (especially if you are uncertain about where you will live), preparing a budget will at least help you to begin the process of estimating how much you will need to get by on.  Then, you will be in a better position to know how much money you will need to seek when you begin to discuss alimony, property division, and child support issues with your divorce attorney.

Going through divorce is almost never easy.  But I hope these practical divorce tips will help you focus on how to prepare, as you prepare for your own divorce!

Divorce: Three Times a Charm for Charlie Sheen

It's been a tough week for Charlie Sheen. On Tuesday, the 45-year-old actor was hospitalized after an "adverse" reaction to prescription medication. And on Monday (November 1), the "Two and a Half Men" star and wife Brooke Mueller filed for divorce citing "irreconcilable differences."

Back in May, Sheen and Mueller signed a 43-page settlement that divided all their assets and settled a child custody agreement. According to documents obtained by TMZ, the couple are seeking joint custody of their twins, Bob and Max.

In addition to physical custody, Mueller will receive $55,000 a month in child support. That monetary sum must be no less than the amount of support he is obliged to pay for his children with ex-wife Denise Richards, as the document reads, "Under no circumstances shall the child support paid by Charlie for Bob and Max be less than the child support paid by Charlie to Denise Richards for Sam and Lola."

The couple, who married in May 2008, have experienced their share of trouble, including a domestic dispute over Christmas at their home in Aspen, Colorado. Sheen had reportedly threatened Mueller with a knife and was charged with misdemeanor third-degree assault as a result of a plea deal. He later entered rehab "as a preventative measure," according to a statement issued by his publicist.

Step Parent Adoption: Surrender of Parental Rights

At the Goolsby Law Firm, LLC, as father and son Augusta, Georgia divorce attorneys, we generally offer free initial consultations. As a result, each day, we get callers from all over Georgia who are looking for information about divorce, child custody, adoption, and countless other family law issues. (Of course, you should always consult with your own divorce lawyer about your own particular situation!)

One common issue which we receive calls about involves whether a parent can voluntarily surrender their parental rights. That's right! Can you believe it!? Some folks "out there" actually want to know if they can give up, or avoid, all parental responsibility for their children! Generally, in most cases, we simply tell such callers that you simply cannot "turn over" your kids and avoid responsibility for paying child support!

Of course, each situation is different. In other words, in some situations, a surrender of parental rights is possible and can lead to a positive result. For example, it is possible for a parent to surrender his parental rights if his spouse has re-married and the new step father is willing to adopt the kids and support them. In this situation, the kids will hopefully be taken care of by a new father who will love and support them. The results in this situation can be fantastic!

However, what is your opinion of the deadbeat parents "out there" who, even if they are gainfully employed, simply want to find a way to avoid paying child support? In your opinion, should a parent be easily allowed to surrender his or her parental rights?

Sperm Donation and Law

WHAT IS THE LAW REGARDING SPERM DONORS AND PATERNITY RIGHTS/CHILD SUPPORT OBLIGATIONS?











So, I keep seeing ads for Jennifer Aniston's new film, The Switch. In the age of independent women, single moms, and vanishing importance of men, what is the law regarding sperm donation???

Short answer: sperm donors (known or unknown) have no paternity rights or obligations IF the sperm donation is done CORRECTLY, through licensed physician or licensed spem bank.

The relevant law is CA Family Code 7613:

(a) If, under the supervision of a licensed physician and
surgeon and with the consent of her husband, a wife is inseminated
artificially with semen donated by a man not her husband, the husband
is treated in law as if he were the natural father of a child
thereby conceived. The husband's consent must be in writing and
signed by him and his wife. The physician and surgeon shall certify
their signatures and the date of the insemination, and retain the
husband's consent as part of the medical record, where it shall be
kept confidential and in a sealed file. However, the physician and
surgeon's failure to do so does not affect the father and child
relationship. All papers and records pertaining to the insemination,
whether part of the permanent record of a court or of a file held by
the supervising physician and surgeon or elsewhere, are subject to
inspection only upon an order of the court for good cause shown.

(b) The donor of semen provided to a licensed physician and
surgeon or to a licensed sperm bank for use in artificial
insemination or in vitro fertilization of a woman other than the
donor's wife is treated in law as if he were not the natural father
of a child thereby conceived.

So...what if the parties had a previous intimate relationship which did not lead to conception - but the sperm donation did?

Case on point:
STEVEN S., Plaintiff and Respondent, v. DEBORAH D., Defendant and Appellant.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR

There, Steven and Deborah had agreement that Steven would be sperm donor. Deborah was artificially inseminated by Steven's semen, and got pregnant. However, the pregnancy was not to term. Later, Steven and Deborah had sexual relationship, but Deborah never got pregnant. They broke up. After they broke up, Deborah used Steven's sperm again, and this time, got pregnant and had baby.

Trial Court held that 7613 does not apply, and accorded paternity rights to Steven.

Appeal Court disagreed, and held for Deborah - NO paternity rights for Steven. Appeal Court reaffirmed the Legislative intent of FC 7613 - which is protection of the right of women to bear children through sperm donors without fear of paternity claims, and also to protect sperm donors from child support obligations.

Divorce Law 101 with Ms. Kelly Chang Rickert

Divorce Law 101 with Ms. Kelly Chang Rickert from Avvo on Vimeo.

Online Divorce Seminar featuring Kelly Chang Rickert

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Tuesday, February 23, 2010 11:00 AM - 11:30 AM PST

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Ask your questions on the call, but if you can't make it, please email your question ahead of time to ask@avvo.com.

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To register, https://www2.gotomeeting.com/register/739155162

Divorce: Getting "Sluggo" to Pay for College

One question which we, (as Augusta, Georgia divorce lawyers), often get asked is: "Can I get the judge to make my spouse, "Sluggo," pay for the kids' college expenses?

The simple, unfortunate answer we generally must give is, "No." In other words, in Georgia, after the children turn eighteen, the non-custodial spouse is generally off the hook for court-ordered child support. But there still may be hope!

In other words, even though a judge may not order "Sluggo" to pay for the kids' college expenses, it is important for you to remember that this is a matter which you can raise with your divorce attorney and, with your divorce attorney's help, it can be negotiated and potentially included as part of a settlement agreement. So, don't give up on the idea. Instead, please just raise and discuss the idea with your divorce lawyer.

And please also don't forget that you should also discuss with your divorce attorney the idea of negotiating for spousal support, too, so that you, too, can afford to join your child at the University of Georgia!

Contempt Motions: Document, But Do Not Deviate!

We have discussed before in this Georgia divorce law blog the importance of keeping a diary, or journal, of every time that your worthless spouse, "Sluggo," is mean to you, or does you dirty! Your divorce lawyer can possibly use that information to help you in your divorce. But this same tip also applies to potential contempt actions. In other words, "Young Grasshopper," it is wise for you to keep pen and paper handy AFTER your divorce, too!

Let's assume, for example, that your deadbeat ex, Sluggo, is running behind on making child support payments, or that he has otherwise failed to live up to your settlement agreement. What should you do?

First, you should contact your divorce attorney about filing a contempt action and taking good ole' Sluggo back before the judge.

But the point here is that, when you see your divorce lawyer, it will help if you have kept meticulous records, including dates and occurrences, of all of Sluggo's violations of the settlement agreement, or court order. In addition, in my opinion, you should rarely give permission to Sluggo to deviate from what the judge had ordered. It might be difficult for the judge to hold Sluggo in contempt for violating the order if you have permitted deviations and made his requirements less clearcut.

Finally, in my opinion, if Sluggo pays child support directly to you, then you should generally NEVER accept cash, (or give cash, if you are Sluggo!), in lieu of a check, as payment of child support or any other obligation. Again, the point is that it is important for you to be able to document everything if you must take your ex back to court and, at least in this one context, cash just doesn't cut it! Now, I realize that, in the real world, if you need the cash which Sluggo is waving around to buy groceries or diapers, then you may very well need to take it, but, even then, you should faithfully write down how much he gave you and when. And if ole' Sluggo had a brain, he would demand a written receipt, too!

Every situation is different. Please discuss your situation with your own divorce attorney. But if you ask me, I will generally tell you: Document, document, document...but do not deviate!

Is Adultery Illegal in California?

I am proud to announce that I decided to partake in the making of a documentary entitled American Marriage: The Movie.

The two intuitive and brilliant filmmakers came over to my office, and my home, and posed some interesting questions - one of which prompted this blog entry.

Is adultery illegal?

Shockingly, I have learned that it still is against the law to cheat in twenty-two (22) states!

What about California?

My research unveiled the unfortunate answer of NO. However, it USED to be.

In 1872, the California Penal Code read,

§ 269a. Adultery. Every person who lives in a state of cohabitation and adultery is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or by both.

§ 269b. Adultery of married persons. If two persons, each being married to another, live together in a state of cohabitation and adultery, each is guilty of a felony, and punishable by imprisonment in the state prison not exceeding five years. A recorded certificate of marriage or a certified copy thereof, there being no decree of divorce, proves the marriage of a person for the purpose of this action. [Amendment approved 1911; Stats. 1911, p. 426.]

Unfortunately, both of these laws were repealed long ago as unconstitutional. These days, it is NOT against the law in California to commit adultery.

HOWEVER, California Family Code section 720 clearly states that in a marriage, "Husband and wife contract toward each other obligations of mutual respect, fidelity, and support."

Meaning, marriage is a contract consisting of FIDELITY, and cheating would be breach of contract for which, presumably, there may exist a civil remedy.

THIS LEADS TO EVERYONE'S BIGGEST QUESTION: ARE THERE ANY CONSEQUENCES TO ADULTERY?

We all know California is a "no-fault" state. (To read a full explanation on the "no-fault" system, go to my previous blog entry here.)

Does it affect child custody and visitation?

Cheating alone would probably not affect custody. Sad but true, we all know a couple of cheaters here and there that are still decent parents. Arguably, they cannot provide the moral background children deserve and need in this day and age...but neither does Grand Theft Auto and/or Facebook, and there are non-cheating parents that allow their children access to such!

Child custody and visitation is always determined strictly by the "best interests of the children". It is PRESUMED that children benefit the most from "frequent and continuing contact" with both mother and father.

I personally believe there must be boundaries when introducing children to a new girlfriend/boyfriend. Children are incredibly sensitive and delicate, and the sincere damage to them in being improperly exposed to a new girlfriend/boyfriend is irreparable. Parents should take their personal feelings and emotions OUT of the equation. No matter how you feel about your spouse, it is NOT ok to expose your children.

THINK BEFORE YOU ACT.

Does it affect support?

It does NOT affect child support.

However, it CAN affeect spousal support. California Family Code section 4323 states, "There is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex."

Does it affect property division?

California is a community property state. All property (NOT inheritance or gift) acquired during the marriage, before the date of separation, is community property.

This means specifically, if the cheating spouse is spending his or her salary acquired during the marriage OUTSIDE the marriage on someone else, they are spending community property and should be required to reimburse the community, sometimes with added interest.

I once had a case where I represented the spouse being cheated on. The "cheater" spouse spend close to 200,000 on extravagant trips, Cartier jewelry, Louis Vuitton handbags, lingerie, and other sundries. My deposition of the mistress revealed several thousands of other property.

Interestingly enough, this former mistress (she has long since been replaced, several times over), felt sincere regret and apologized on record and became friends with my client; thereby liberally disclosing all the information I needed to secure settlement within the HOUR.

Moral of the story: Don't cheat.

Georgia's Child Support Guidelines

In the “good old days” in a Georgia divorce, (i.e. prior to 2007), child support was easier for a divorce lawyer to calculate, and generally was simply based upon a percentage of the noncustodial spouse’s income. And in those “good old days,” the parties in a Georgia divorce had greater flexibility, compared to today, about setting the amount of child support. But all that changed on January 1, 2007 with the passage of the Georgia child support guidelines, (see O.C.G.A. 19-6-15).

Georgia child support is now determined by your divorce attorney in accordance with the Georgia child support guidelines, based upon the gross income of both parties to a divorce. Parties in a Georgia divorce can no longer simply agree about an appropriate child support amount between themselves, unless the parties’ settlement agreement contains findings that a judge determines sufficiently support a deviation from the guidelines’ amount. In other words, in Georgia, the child support guidelines generally rule!

When calculating the child support guidelines, your Georgia divorce lawyer should initially determine each party’s gross income (and you should generally take into account income from just about any source, including your Georgia lottery winnings). If one of the spouses has previously had court-ordered child support for another child, then that spouse may be entitled to a deduction of that amount from his gross income amount.

Next, your divorce attorney will add each parent’s adjusted income figures together to compute the combined adjusted income. Then, your lawyer will locate the basic support obligation amount by referring to a child support obligation table. Next, you calculate the noncustodial spouse’s pro rata share of the basic child support obligation amount. You then make adjustments, in appropriate cases, based upon such things as whether there are health insurance costs (for the child), or whether there are work-related child care costs. In other words, as an example, if the custodial mother has to pay daycare costs, then the guidelines call for an adjustment which will require the noncustodial dad to pay his pro rata share of that daycare cost. Finally, the guidelines also allow some room for deviations from the presumptive guideline amount, in appropriate cases.

This is just a quick review of some of the types of issues which are generally considered in determining child support under Georgia’s new child support guidelines. Hopefully, the child support guidelines generally determine a fair child support amount which equitably takes into account both parties’ incomes. And hopefully, the guidelines will do a better job of ensuring that child support will actually be paid to Georgia’s children of divorce. Maybe the “good old days” when parties could more easily manipulate child support weren’t really so good after all.

Child Support Blues

If you think you have the child support blues, because of frustration in trying to receive or to pay child support, here's a real story for you. A minimum-wage-earning 29-year-old man in Knoxville, Tennessee, is already the father of 21 children with 11 different mothers. On second thought, I also should have mentioned frustration of the taxpayers, as they will in their own way undoubtedly be

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Divorce and the Economy

Several people have asked me how the economy has affected my practice. Below is an article which quotes me.


Recession Forces Divorced Back to Court to Lower Alimony, Child Support
By DIVORCE360.COM STAFF

When John and his wife divorced, they agreed to sell their home. But every time they come close, his ex stalls “because she wants to buy it.” With the real estate market in a tailspin and the nation in a recession, “She feels prices will go down further,” which would enable her to buy it from him at a cheaper price. To complicate matters, John, not his real name, recently lost his job in the financial industry. With the house issue looming, he’s already asked the court in his state to award him attorney’s fees since his wife filed for divorce. In addition, he’s considering a change to his property settlement: he may return to court to ask his ex for alimony, something he never would have done before the layoff.

According to legal experts from around the country, John’s tale isn’t unusual. The recession that’s affected every other aspect of America is now affecting family court as well. Clients are returning to court as a way to deal with financial hardships that are affecting their property settlement agreements. “It's happening because retirement accounts have dwindled to nothing for some people and a decree that gives you half of what was a robust account now gives you half of not much,” said retired attorney Brette Sember, author of a number of how-to books, including “The Divorce Organizer.”

Los Angeles, Calif., family law attorney Kelly Chang Rickert said her clients want to modify their judgments because their financial circumstances have changed dramatically. “Due to the economy and loss of jobs, I am seeing a lot more modifications to child support – reductions for the payor if they’re laid off and an increase for the recipient if they’re laid off…” Another big recession issue: “Alimony needs to be increased for folks who have lost jobs,” Sember said. In some cases, according to Chang Rickert, she’s even seeing changes in child custody arrangements because “parents who have been laid off have more time to spend with children.” A new mom herself, Chang Rickert has noticed “nannies and housekeepers are getting laid off because parents who have no jobs have more time” to spend at home.

California family law attorney David Pisarra said he’s seen so many clients dealing with this issue that he’s rolled out a new payment program – charging only a flat fee – “to address this new need.” John’s not the only one in a quandary over the inability to sell his marital home. Many property settlements state that the divorcing couple will sell their home, but “Many people can't sell and need to know what to do if they can't,” she said.

Mel Gibson

Mel Gibson's Divorce Could Be Most Expensive in Hollywood History
By Ken Lee
Originally posted Tuesday April 14, 2009 07:30 AM EDT
Robyn and Mel Gibson Photo by: Steve Granitz Archive / WireImage


Mel Gibson may soon be writing one of the biggest checks of his life – to his wife. With no indication that the estranged couple – who married 28 years ago – had a prenup, Robyn Gibson, 53, is legally entitled in their divorce to half of everything the actor-director-producer earned from their marriage in 1980 to the date of their separation: A fortune estimated at close to $1 billion. "This could easily be one of the biggest divorce settlements in Hollywood history," says Los Angeles family lawyer Lynn Soodik, who's not involved with the case. "Any attorney would advise her to take half."
Surpass Previous RecordsA $500 million settlement would dwarf the current record holders of celebrity divorce: Michael Jordan ponied up $168 million following his 2006 divorce with wife Juanita; Neil Diamond forked over $150 million after his 1994 split with Marcia Murphey; while Steven Spielberg shelled out $100 million following his 1989 divorce from Amy Irving. Among Gibson's estimated assets: More than $600 million grossed by The Passion of the Christ alone, $100-plus million in real estate investments worldwide (he bought an island in Fiji for $15 million in 2004), and $75 million for film and TV projects for which Gibson executive produced. As for film residuals, Gibson, also 53, "would be accountable to pay half for the rest of his days," Soodik says. "If he gets a residual check for Lethal Weapon or Braveheart, half of that check is hers." But don't expect the ex-couple to enter a painful, protracted battle in the courts. "This divorce will probably reach a settlement in a matter of months," Soodik says. "It likely won't be messy since there's enough money to go around." • Reporting by HITHA PRABHAKAR and EUNICE OH

Recession, Pink Slips, and Child Support

Yes, we're in a recession, and that's obvious in family court, where pink slips have resulted in more child support modification cases: Fighting Over Child Support After the Pink Slip Arrives - NYTimes.com.For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Fathers & Families Group Unsuccessfully Sought to Block Implementation of New Child Support Guidelines

The organization Fathers and Families (www.fathersandfamilies.org) has recently gone to federal court in an unsuccessful attempt to block use of the new Massachusetts Child Support Guidelines in our family courts. See The Docket » Blog Archive » Fathers’ group sues to stop new child support rules. I am writing an article on the new child support guidelines for a law journal, and am trying to keep