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Oakland CA Divorce Law Blog

Courts unsure how to treat frozen embryos after a divorce

Some couples in California choose to freeze embryos so that they can still have biological children of their own even after one spouse becomes infertile. When the couple divorces before the frozen embryos are used, there are a lot of questions about what the parties can do with them. Courts have long struggled with these issues, and it is still unclear whether frozen embryos should be subject to property division or child custody laws in a divorce.

One court case involving a divorced couple in San Francisco with frozen embryos has yet to be resolved. The couple created five embryos after they were married because the woman was about to undergo breast cancer treatment. The couple has now divorced, and the woman wants to use the embryos even though her ex-husband objects.

Child support and jurisdiction issues

California noncustodial parents who have been ordered to pay child support will often later have a change in their finances that makes it difficult for them to afford the amount they were ordered to pay each month. When the change is a substantial one, courts may modify the amount that was ordered to a lower one.

Questions regarding jurisdiction sometimes arise. A court with jurisdiction is the one which should preside over the case. Determining jurisdiction involves applying the mandates of the Uniform Interstate Family Support Act in cases in which the parent and child live in different states. The law has been adopted by all 50 states.

The importance of divorce disability insurance coverage

A California divorce decree may have to be revised if an individual obligated to pay child support or alimony becomes disabled and unable to continue to make the required payments. Both parties to the divorce agreement can be affected negatively by a disabling disease or injury because of the impact on the injured party's income. Without a modification to the terms of the divorce, the injured party could fall behind and face legal consequences, while the other party would suffer financially due to the lack of funds. Planning for this possibility with special insurance policies could save both parties from such difficulties.

In many cases, courts will require an individual to carry life insurance that will pay the remaining child support and alimony obligations in the event of their death. A disability policy might not be ordered, but this could be a wise investment to be sure that the needs of one's children are met if a disabling condition occurs. It is possible to include this provision in a divorce decree, and obtaining such a policy after the completion of a divorce warrants a modification to ensure that the details are recorded.

Claiming Social Security benefits from spouse's earnings

Individuals in California whose spouses have paid into Social Security may be entitled to collect benefits based on those earnings, even if they are divorced. However, in order to collect these benefits, the individual must meet several important requirements, including how long the couple was married and how much he or she currently earns. The younger the individual and the higher his or her earnings, the less likely it is that a Social Security benefit will pay in the short term.

In a divorce involving significant assets, it is not unusual for both spouses to have good incomes. If one spouse is significantly younger than the other, this may create an interesting issue when they divorce and the younger spouse attempts to claim Social Security benefits.

Court rules it has no jurisdiction in actress's custody dispute

On July 23, a Los Angeles Superior Court judge ruled that California does not have jurisdiction over actress Kelly Rutherford's custody case. The judge stated that the children no longer had the requisite connection to the state as they had only visited for one week within the last two years.

Initially, Rutherford and her ex-husband had joint custody of their two children. In 2012, however, her ex-husband lost his U.S. visa. A judge subsequently ruled that the children should live with their father in Monaco, which would allow them to live in one place as their father could not visit them in the U.S. Since then, Rutherford had been fighting to bring her children back to the U.S. while traveling abroad to visit with them.

Pet custody battles

California couples who are going through a divorce may be worried about more than just child custody, spousal support and property division. Many people have pets that they consider to be part of the family. When a couple separates, there is often conflict over who gets to keep the animal. While in the past, pets may have been treated by the court as property, cultural changes have shifted how courts treat animal companions. Nowadays, a judge may treat an animal more like a human child and base decisions on what is in the best interest of the pet.

While people have always had strong affection for their pets, new understandings of animals has altered how they are perceived and treated. It is understood that animals have emotions and that their welfare is a reasonable concern of both the humans who care for them as well as those in legal authority. As a result, when judges consider property division in a divorce case, decisions regarding the pets may be considered separately.

How substance abuse issues may impact child custody cases

Although a California resident might assume that drug use would have a negative impact on a parent's petition for custody of their child, one cannot generalize. The specific details of a case may play a role in the amount of parenting time and terms of visitation ordered by a judge. If drug abuse is an issue that is far in the parent's past, for example, primary physical custody could be a reasonable option. Further, joint legal custody is typically ordered unless one of the parents has been declared to be unfit.

In the case of a recent announcement by reality tv celebrities Kourtney Kardashian and Scott Disick related to their pending split, there is speculation that the couple's three children would likely be placed with their mother due to the father's recent release from a drug rehab. However, many observers believe that the outcome could depend on whether the mother will fight for custody. Further, recent trends suggest that a parent might still obtain some form of custody in spite of negative behavior in their history.

Unpaid child support, more lead to arrest of rapper DMX

California residents may know Earl Simmons by his stage name DMX, but the New York City Sheriff's Office apparently knows him as a man who failed to pay $400,000 worth of child support among other things. According to a representative of the office, the rapper had multiple outstanding issues that led to his arrest on June 26.

The entertainer was detained because of delinquent child support payments, a bail jumping warrant from White Plains and criminal accusations. One of the accusations involves a robbery complaint from Newark, New Jersey, where DMX is listed as a suspect in an April 5 gas station robbery, but charges have not been filed in this case so far. The unpaid child support warrant comes from the Erie County Family Court.

How debt can be divided similarly to assets in a divorce

Many California couples who are getting divorced in court understand that assets from the marriage will be split. However, it's less commonly known that debt will be split among the spouses as well. Similar to other property obtained during the marriage, debt will have to be divided. Knowing how the debt might be divided is important for both parties.

If credit card debt accumulated during the marriage, the decision as to which spouse is responsible for it often hinges on whose name is on the account. An account in both names will likely wind up with debt shared between the two. If there was an individual credit card and the other spouse had no connection to it, the debt will belong to whomever's name is on the account.

California custody laws receive a D grade for shared parenting

California was one of 23 states that received a grade of D when the National Parents Organization rated how each state's custody laws treated shared parenting in 2014. Only the District of Columbia and seven states were awarded an B grade, and no state earned an A. Child custody laws throughout the United States have been criticized for basing decisions on outdated gender roles and ignoring a growing body of research that highlights the benefits of shared parenting.

The NPO praised California child custody laws for requiring courts to take friendly parent factors into consideration when custody decisions are made, but they criticized them for requiring both parents to agree before joint custody can be considered. California was also graded poorly for not explicitly providing for shared parenting arrangements during temporary orders.