IAAL or any one -Help-how can a new spouse be ordered to pay support for his stepkids

[rreichek]

As a new spouse , i support two stepchildren completely because my wife does not work and her ex husband is on disability and will not /does not work.A california court judgement on friday has stunned us.As my 6-11-00 post, answered by iaal, explained my wife was being sued for child support because her ex says he lives below the poverty level and since she married me, she has access to half my income.In april a judge agreed (although he had no w-2,1099 or tax return).Her income and expense declaration stated a gross $8000 a month for my income(which was incorrect-but we did not feel my income was pertinent).The ex stated an income of $697 a month which our lawyer did not challenge.his income is from ssi.The judge stated my wife is entitled to 1/2 my income as her income and used the case DECker V. Decker 1994 for precendent .The 2 girls live with us ,she has sole phisical custody and i provide all financial support,she does not work.We were married 4/1999.The visitation to thier father is every other weekend and split summers and holidays.they are with us 70-80% of the time.The friday case was based solely on support for the ex husband, since he "cannot work due to health".The judge did not even pause in his descion.He stated my "wifes income" was already established in the fist case 8 monthes ago as was the ex husband's.Not only was the amounts for him substantally under reported ( as shown by his monthly checking account deposits),But my income cannot be used in a support case for children which are not mine( or so i thought)
.Finally and most importantly ,BEFORE we were married we signed a prenuptuial agreement to avoid this possibility.The judges would not consider it .The case on friday was decided before we got there and seems completely errouneous and unfair.Because i have no children of my own i am stunned by the fact i not only support these girls completely-But i have now been ordered to support thier father and his new wife and step child as i am the only one with income.PLEASE CAN I BE GIVEN SOME OPTIONS!Our lawyer says if we appeal we would have to overturn two other judges descisons-an unlikey hope.Can we ask for and ammendment in support immediatly and hope a judge will actully investigate the real incomes of my wife and her ex husband? Are there any other options? We were ordered to pay his attorneys fees ( for suing us for support) and our lawyer is concerned my wife could be arrested if we do not pay the $197 a month or the attorneys fees as it may be a violation of a court order -is thet possible? ANY ONE WITH SOME ADVICE ?---

 

[usdeeper]

I do not understand... you have physical custody of the children but yet your wife (the mother of the children) has been order to pay the Non Custodial Parent Child Support ?.. maybe I just read it wrong.. and you also have to pay his attorney fees when he was the one that brought the action to get this money ?????..

 

[rreichek]

Yes , you read it correctly.The fact the ex husband " lives below the poverty line" as stated by his attorney and used by the first judge, was the largest factor.The first case was brought by us as a modification of visitation.The ex is a intravenous drug user who lives rent free on a "biker's compound" nabout an hour from the closet city.The girls wanted to see thier father but felt unsfe and did not want to stay there overnight.we lost all points of our case based on a court appointed physcologist,i had to pay $3000 for(since the ex could not pay 1\2), extreemly friendly evaluation of his "situation".While she found he uses drugs in front of the children( it is in her report) and his new wife does phisically hit the children and the house is "out of town".She advised these things need to stop.My wife lost her original order of sole legal custody because the pyscologist stsated that since the ex is illiterate and "socially challenged" , she reached the conclusion my income and education would create a situation in which the father may be forced out of the picture by me.While not legally possible , i also felt it was very important for the girls to continue to spend time with their birth father.Her report was not challenged by our lawyer and the point of paying his lawyer was never a consideration by our lawyer as he told the judge we had a prenuptuial agreement and the judge said it was immaterial.The case just decided was based on the first descion and was brought as a child support case by the ex husband.My wife and he were on welfare when they were married and she has not had an income or tax return in over six years.Our prenup states my income can never be used an commuinity property by her.Our assets are and will remain seperate.I don't see how what happened is possible but it has so pragmatically i need to know what to do to change this --What are our options?Can you Help?

 

[usdeeper]

Sorry.. I can not help in this one.. it is too strange.. IAAL is our resident attorney here and I hope he jumps in and helps.. I just do not know how so much can be given considering the circumstances.. Drug use is normally the bee all and end all of any case.

 

[paula2]

Well, nothing suprises me with our court system these days. I believe you may need to seek counsel with another attorney. Sounds like since your attorney did not challenge some of these things.....maybe he is not versed enough in these areas or just didn't do his research. This is proposterous, how can a prenup not stand up in court? They are legal and are setup to help protect you against things like this. Out of curiosity, did this same attorney setup the prenup?

 

[I AM ALWAYS LIABLE]

My response:

The proper name and cite of the case is called:

In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 21 Cal.Rptr.2d 642

This case deals strictly with "apportionment" of stock value between husband and wife in a divorce case. It has nothing to do with "New Spouse" or "New Mate" responsibility for stepchild support. I don't even understand how the judge could have even used the "penumbra" of this case to fashion a decision to make our writer responsible. All case law and statutory law, which is "on point" says otherwise!

I really believe the judge was manipulating you and made a very poor decision based "on whole cloth" rather than precedent. And, what's worse, is that apparently, your attorney let it happen. An appeal should have been filed.

In effect, what this decision does is gives you two choices: 1) Stay married and pay for someone else's children, or 2) Get a divorce so you don't have to pay. Of course, the second choice goes against the spirit of the law in California which encourages people to be, and remain, married. So, the judge's decision flies in the face of this concept, and which is based on nothing that appears to be rational.

Amendment eliminating "new mate income" factor amounts to changed circumstances: When first enacted in 1992, the guideline permitted courts to consider as a factor rebutting the presumptively-correct formula amount of support the income of a parent's new spouse or nonmarital partner (new mate income) to the extent it helped defray the parent's basic living expenses and thus increased the parent's disposable income available for child support. Effective January 1, 1994, new mate income "shall not" be considered in fixing child support except in specified extraordinary circumstances. [Ca Fam Sec.4057.5(a) & (b)

1) Extreme/severe hardship to child required: The only exception permitting consideration of new mate income in fixing child support is "extreme and severe hardship" to the child. Unless the supported child will suffer if the court does not look to the income of a new spouse or nonmarital partner, such income cannot be considered. [Marriage of Wood, supra, 37 Cal.App.4th at 1067, 44 Cal.Rptr.2d at 241]

Conversely, where a child would suffer extreme and severe hardship if the court does not consider new mate income, the court must look to it (unless other supported children would thereby suffer extreme and severe hardship, see below). [Marriage of Wood, supra, 37 Cal.App.4th at 1067, 44 Cal.Rptr.2d at 241]

2) Balancing against hardship to other children: In the event of such an "extraordinary case," the court must also consider whether including the new mate income "would lead to extreme and severe hardship" to any child supported by the other parent or that parent's new mate. [Ca Fam Sec. 4057.5(a)(1) & (2)]

3) Intentionally suppressing income as "extraordinary case": The statute recognizes the following circumstances as noninclusive examples of an "extraordinary case" potentially warranting consideration of new spouse/nonmarital partner income in fixing guideline child support (Ca Fam Sec. 4057.5(b)):

· A parent who voluntarily or intentionally quits work or reduces income (Ca Fam Sec. 4057.5(b)); or

· A parent who intentionally remains unemployed or underemployed and relies on a "subsequent spouse's" income (Ca Fam Sec. 4057.5(b)).

However, as noted above, the court may look to new mate income in such circumstances only in order to prevent extreme and severe hardship to the supported child. [Marriage of Wood, supra, 37 Cal.App.4th at 1067, 44 Cal.Rptr.2d at 241]

a) Not exclusive--discretionary case-by-case approach: The above situations are simply examples of suitable "extraordinary cases." An uncodified statement of legislative intent makes clear that Sec. 4057.5 does not lock trial courts into any standardized approach for determining whether a particular case is "extraordinary" so as to potentially warrant consideration of new mate income. I.e., this is another area under the statutory scheme where trial courts retain discretion. [See Stats. 1994, Ch. 1140, Sec. 3--"It is the intent of the Legislature that the restrictions specified in (Sec. 4057.5) . . . is (sic) not subject to court standardization, but is subject to judgment on a case-by-case basis" (emphasis added)]

Indeed, that trial courts are supposed to approach the "extraordinary case" issue under Sec. 4057.5 on a discretionary basis is further evidenced by the Legislature's express statement of intent that Sec. 4057.5 "prohibit the establishment or use of any formula or local court guideline devised to determine when consideration of a subsequent spouse or nonmarital partner's income is relevant." [See Stats. 1994, Ch. 1140, Sec. 3 (emphasis added)]

4) Generally no circumventing § 4057.5 prohibition under guise of applying other guideline factors: For the most part, the court cannot circumvent the statutory bar against consideration of new mate income (absent an extraordinary case resulting in extreme hardship to the child) by taking into account such income under the guise of applying another guideline component. [Marriage of Wood, supra, 37 Cal.App.4th at 1071, 44 Cal.Rptr.2d at 243]

a) No consideration as affecting lifestyle: Thus, while the statutory scheme recognizes that child support should be consistent with the parents' lifestyle, § 4057.5 precludes courts from considering new mate income by taking it into account only as it relates to the parent's standard of living and that of the children living with him or her. [Marriage of Wood, supra, 37 Cal.App.4th at 1066, 44 Cal.Rptr.2d at 240--"this was tantamount to considering new mate income" in violation of § 4057.5]

b) No consideration as "special circumstance" rebuttal factor: Nor can courts overcome the Sec. 4057.5 limitations by treating new mate income as a Sec. 4057(b)(5) "special circumstance" warranting a rebuttal revision of formula support. [Marriage of Wood, supra, 37 Cal.App.4th at 1066, 44 Cal.Rptr.2d at 240]

I have no further advice or opinion in this matter because it's difficult to fight back with laws, and when the judge does not go by the laws and appears to "make things up" as he goes. So, how can one advise against that?

IAAL

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[This message has been edited by I AM ALWAYS LIABLE (edited July 23, 2000).]

 

[usdeeper]

I understand how a new spouse income may be brought into the equation. What I do not understand is why the drug use and abuse by the bio father new wife was not taken more into consideration.. and worse, why the custodial parent is paying the non custodial parent.

It seems to me that a judge saw a down and out poor man with little eduation, a drug habit and living in not so great conditions and decided to rule everything in his favour, including attorney fees.

I think the only advise that can be given is to get another attorney and see about an appeal. When looking for a new attorney, make sure they are discussed by the decision and not just someone who will see what they can do..

 

[rreichek]

Thanks for your responses.The sprit of the law was obvious when IAAL first advised me of all of the above case law he just recited in answer to this post.However , as our new attorney pointed out , in california family court a judge can decide anything he wants and in the second case ,the judge simply refused to accept any possibilty of change since the first case was submitted almost a year ago.THE ADVICE I SEEK IS "WHAT OPTIONS DO WE HAVE NOW"? I know what happened is unjust and surreal.However it has has happened and barring an appeal,support ammendment order or some other stop gap mesure like a divorce .My wife and i will have to send money to that low life individual.Can my wife be arrested if we do not pay? He owes5 years back child support payments yet the D.A. refused to act.Our new lawyer stated that since her "income"(1/2 of mine,guessed at $8000 a month) has been proven to exist in court she may be arrested for non payment.What happens if we file an appeal?The first case deadline for appeal passed without our knowledge.Our attorney says any judge will be unlikly to overturn two other judges descions.WHAT DO WE DO? IS there another OPtion?

 

[paula2]

Have you tried talking to another attorney about this matter? I think it wouldn't hurt to get another legal opinion there.

Its a shame, the court system is not always fair.

Good Luck and God Bless.

 

[usdeeper]

and I bet the 5 year back support never came up either.. Still baffles me how you can be ordered to pay child support to a man who does not have physical custody of the children and even worse when he owes you 5 years worth of child support ??.. Oh well..

 

[rreichek]

"It is better to light one candle ,than to rage at the darkness..." Thanks for the support but i really need OPTIONS.yes i have an attorney working on it and besides the cost, attorneys mistakes are what got us in this situation.Back child support is a completley seperate issue according to my attorney.Logic says balence it out,but who can do this?Logic says we have a pre nup not a community property situation-who can overturn 2 judges orders?logic says my income cannot be considered for stepchild support or fees, yet it has happened....What can i do through cal. family services, the D.A., start another case aganist her ex and risk a third judgement of my wife having to pay his attorney's fees.NEXT I'M SURE HE WILL TRY FOR A CHANGE IN CUSTODY _WHY NOT HE IS TWO FOR TWO_ HELPFUL ADVICE PLEASE!!!

 

[dissatisfied]

Find a new lawyer ask the clerks of the court whos the fairest judge/lawyer, obtain change judges,lawyers,and Get a divorce. Even if its in name only...
this may not be much help but in california...you have MANY options...oh and get as much backround information.tax records like where they live..bank accounts ..any thing written (written word is law) you might even invest in a private eye or the 39.99 find out anything about any one...if you have a social number..you can find many things...but unfortunatily you must do the leg work...just sugestions...sorry no solid info...