Hello all,

I have filed a motion to modify support based on changes in circumstance, 1. cohabitation of my ex-wife, 2. based on her income and expense declaration he is supporting her big time 3. She finally after 3.5 years and an EEO has a job 4. I am unemployed but still have to pay support.

I have filed declarations and exhibits, including a P.I.'s video, a witness that saw them together even before she filed separation papers over 4 years ago, his drivers license and car registered to her house. I was truly the last to know.

My questions are, what should I prepare for? And what are my chances of terminating support? What is the latest case law? And how do I look it up? I am in Santa Clara County, CA. Her attorney is very sharp and has been brutal to my two attorneys (since been fired, the incompetents, don't they have to pass the bar anymore?). After $30,000 in fees I'd rather do it myself, no matter how much research I have to do.

Thanks
PMM

Your chances of modifying support sound good. The cohabitation issue creates a presumption of reduced need, it's not necessarily a basis to terminate support (or support jurisdiction) but you might get support set at zero.

Having said that, cohabitation as an issue in caes like yours is a big pain to try to make use of; people deny it left and right and it can be hard to prove (you might be able to if she admits support on her I&E and based on the other evidence you have accumulated)... ah what else... Your unemployment ought to be enough. Also, what about asking her for support (you didn't terminate jurisdiction to have it awarded to you I hope)?

Everyone hates litigating spousal support because it is an area of huge judicial discretion and the outcome can me hard to predict if for no other reason than so much depends on your judge. Just go through the Family Code 4320 factors step by step. California Courts has case law but there's nothing really new that comes to mind on the issue of cohabitation as a basis to reduce support.

Oh and another thing. I hate these spousal support mod cases on long-term support. Every time I get on in my office I want to gag.

Expensive, frustrating, time-consuming, very broad judicial discretion, difficult to predict the outcome of, parties are often unhappy with the outcome etc. etc.

They are hard for me and I'm a California family law attorney and a Certified Family Law Specialist.

Thanks for your response. She didn't actually admit being supported by Boyfriend. Her Income Expense Declaration says her ACTUAL Expenses are $3900 per month (on at least three FL-150's). Her only reported income is $2000 per month. I am hoping the judge agrees with my claim the difference is being supplied by Boyfriend. Otherwise she has committed perjury.

I have a declaration from a friend in St. Louis who witnessed my ex and the boyfriend together four years ago. My ex left St. Louis last year where she had been living with her sister and bought a house in South Carolina. Just AFTER permanent support was awarded, the boyfriend followed her and now lives with her. According to the Post Office his mail is being forwarded to her address. His car and driver's license are registered to her address. I have video of him coming out in his bathrobe to get the paper and of a regular sitings of them both leaving for work and coming home and spending the night. Is this enough evidence for cohabitation?

I would ask for support except my unemployment benefit is almost the same as her full time job pay. If my EDD pay runs out then I may make the motion.

It sounds pretty convincing but you know this is going to have to be set for a trial. Maybe 2 hours at least.

Of course if your unemployment benefits are less than what she receives working it's hard to imagine a court not granting the mod on that basis alone, never mind the cohabitation issue. You should not just ask for a mod of support to zero but termination of jurisdiction as well unless you want to keep the door open for yourself. The length of the marriage is a big issue, as I'm sure you know.

Her expenses seem a little high, particularly for South Carolina (4K a month for one person? ). But again, sounds like you have a pretty decent shot at making support go away.

The marriage was 24 years. It took 3 years to get a judgement, aided and abetted by both sides attorneys. Why end the gravy train when daddy's paying the fare? I kept asking for a trial, over and over, but I never got one. My attorney never questioned her expense statements. I said, "isn't there some penalty for lying, insinuating and insulting me freely?". My attorney just said that's how it's done.

In my declaration I ask for suspension or termination of Alimony. It is possible I will get another job although not likely in this economy and my age of 60. Age discrimination is alive and well in this state. I also ask for new EEO since she is an educated woman and obviously underemployed. She had a Vocational Evaluation and clearly states what she should be making if living here.

I also argue that cost of living in South Carolina is 38% less than San Jose. She moved there of her own free will and of course the pay is lower, and fewer jobs but also the cost of living is lower. The judge never cut me any slack on that issue.

My best option if all goes south is wearing her down. In pro per I have little cost but each motion she defends costs her plenty. Eventually she may make a deal. But not counting on that. She is a stubborn woman who thinks I am the cause of her lost youth.

Btw: What is the difference between a trial and a hearing? I have been doing research on the PLOL site and all the appellate cases I have studied derived from a trial. And yet I have never had a trial. The judge made orders during a hearing. Is that the same as a trial? If I want to appeal do I have to insist on a trial first? If I think this judge is biased, do I have a chance for another judge?

Things I worry about
PMM

That's a good question. A support modification request starts as a motion which is set on a short cause calendar (they are typically limited to 20minutes). The judge has discretion to treat this hearing as a trial and take testimony or receive evidence if he wants to and make a decision on the spot. Judges often do this if they feel there is only a simple issue that can be disposed of relatively quickly. At the same time the judges don't have to accept any evidence and can decide the matter based only on the declarations the parties filed in advance of the hearing (this is called "reiflerizing" from a case by that name, Reifler). If you feel the court cannot do justice to your case on the short cause calendar, or if the judge feels he needs to hear more evidence, or hear from withnesses who are not present, then you can ask for a trial (often called "evidentiary hearing" or "long cause" matter) or the judge will just order it and the matter is then set for a hour or longer,based upon what you think you need or the judge allows. A spousal support mod (on long-term post-judgment support) is surely going to be set on a long calendar, i.e. set for trial. If the parties show up and have an agreement at the short cause hearing then that agreement goes on the record and that ends the case.

Wow, you have given me more information in one paragraph than two attorneys did in three years. Thanks so much. Every time I walk into that courtroom I feel like a walking target. Of course they can't take the time to explain every little thing to me but just the basics (like you laid out) would be so helpful.

I feel I am taking advantage of your kind knowledge sharing but if I may ask another question. In my recent declaration I did not formally address the fourteen points in family code section 4320. My last attorney hardly bothered arguing them at the permanent support hearing last year. Should I submit a supplemental declaration arguing those points again but more thoroughly? Some of those arguments don't really qualify as changes in circumstance which is what the basis of the motion is now about.

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Originally Posted by paintmadman

Wow, you have given me more information in one paragraph than two attorneys did in three years. Thanks so much. Every time I walk into that courtroom I feel like a walking target. Of course they can't take the time to explain every little thing to me but just the basics (like you laid out) would be so helpful.

I feel I am taking advantage of your kind knowledge sharing but if I may ask another question. In my recent declaration I did not formally address the fourteen points in family code section 4320. My last attorney hardly bothered arguing them at the permanent support hearing last year. Should I submit a supplemental declaration arguing those points again but more thoroughly? Some of those arguments don't really qualify as changes in circumstance which is what the basis of the motion is now about.

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You brought up a really good point. First, legal argument does NOT belong in a declaration. It belongs in what are called "Points and Authorities" or "P's and A's" for short. Family law attorneys make this mistake all the time: writing up a declaration and citing the law in it and making argument! No, no, no! In fact, there is a recent case (the name of which escapes me at the moment) in which an appellate court scolded family law attorneys for doing this and advising that, although it is common, it is sloppy practice, is unprofessional and should stop. Declarations are only suppose to contain facts. No law. No citation to law. No argument. Again, that's for P's and A's, and these are optional in family law in California anyway (I use them once in a while if I have a novel legal issue or if I think I'm before an inexperienced judge just to educate the judge. But, the 4320 factors are the basics any family law judge should know and really shouldn't need to be cited). You can argue the 4320 factors in a trial brief, that's fine and a good idea in fact. Don't do it in a declaration. And you don't need to file P's and A's just in the initial motion for modification of long term spousal support. These sorts of motions are commonplace. Hope this helps.

Is the format the same as a declaration? Just remove the wording and replace it with Points and Authorities? Or is it much more complicated. Is there a place that I can look at one for some pointers? And can I submit now after the fact? If I don't need to file it, do I just mail it to the judge and OPC before our hearing? And is a trial brief considered a P and A?

PMM

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Originally Posted by paintmadman

Is the format the same as a declaration? Just remove the wording and replace it with Points and Authorities? Or is it much more complicated. Is there a place that I can look at one for some pointers? And can I submit now after the fact? If I don't need to file it, do I just mail it to the judge and OPC before our hearing? And is a trial brief considered a P and A?

PMM

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The format can look like a declaration somewhat but there is no actual pre-printed form for it. Yeah, it's more complicated than a declaration . You have to do it on a pleading (you know the paper with the numbers down the left side) with the name of the court in the center on line 8 or 9 and the case name on the left, "Memorandum of Points and Authorities of Petitioner [or Respondent]in Support of... " on the right, then the introductory sentence. There is usually a factual summary with brief history of the case to start, this is sort of the introduction, then point by point legal argument. If you can get friendly with any of the court clerks in the family law division ask one of them if they can think of a case where someone filed P's & A's and ask for a copy. Divorce cases are all public records and the clerks are use to seeing P's & A's and know what you are talking about if you ask. That will give you the format to copy. Or you could go to the law library and ask the librarian to help you find an example. They could do that.

I don't know what you mean about submitting P's and A's after-the-fact (you mean after a motion is filed?) .If you have an upcoming hearing watch the time limits. A motion and all supporting paperwork (including P's & A's) are suppose to be filed and served a minimum of 16 court days (Mon-Fri excluding holidays and weekends) before the hearing plus 5 calendar days if mail served (in a post-judgment motion personal service is required a minimum of 16 court days before the hearing). The other side always has to be served with anything filed in the case and a proof of service must be filed as well to show you did serve it (if you are pro per you need someone over 18 to serve for you and sign the proof of service). If you filed the motion with no P's & A's (and don't forget you don't need them) you can always supplement your motion with them later as long as you do so within the time limits I described. That's fine.

No, a trial brief and P's &A 's are two different things but I think it's OK to put them in a brief. I think you can combine them. A trial brief is more an outline of your case and what you want to show or prove.

Yes, I was asking about after the motion has been filed. My hearing is the 23rd of Dec so I have some time. Sounds like what I need to do is visit a law library. Many thanks.

PMM

Yeah, take a trip to the law library and you'll be okay. There's a series of books called "Forms of Pleading and Practice" that is kind of a how-to reference for putting together various legal documents. It's a really old-school series but it should help. Good luck.

So, if I understand you correctly, I fill out my P and A's and simply mail it to the judge and have it served to the OPC? Since I have already filed my motion, there is no clerk filing, is that right?

No, you don't mail P's and A's to the judge but instead file them with the clerk's office, just like you did with your motion, and also file a proof of service to show you mailed a copy to the other side. Be sure someone else signs the POS whose over 18. There's a form POS you can use. If you can get the P's and A's together the clerks will kind of help to be sure you have everything you need to file on file.

So just to get this entirely clear, I just need the "Memorandum in support of" (that's what the books called it) and POS' and I go to the clerk?

Oh, I found a case that might help me but it is unpublished. I looked up rule 8.1115 and it says the case may be cited "when the opinion is relevant under doctrines of law of the case, res judica, or collateral estoppel" What the heck does that mean?

PMM

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Originally Posted by paintmadman

So just to get this entirely clear, I just need the "Memorandum in support of" (that's what the books called it) and POS' and I go to the clerk?

Oh, I found a case that might help me but it is unpublished. I looked up rule 8.1115 and it says the case may be cited "when the opinion is relevant under doctrines of law of the case, res judica, or collateral estoppel" What the heck does that mean?

PMM

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Wow, you're getting into the nitty gritty! I'll get back with you a little later, this is going to take a little time to answer and I'm on my way to the gym.

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Originally Posted by paintmadman

So just to get this entirely clear, I just need the "Memorandum in support of" (that's what the books called it) and POS' and I go to the clerk?

Oh, I found a case that might help me but it is unpublished. I looked up rule 8.1115 and it says the case may be cited "when the opinion is relevant under doctrines of law of the case, res judica, or collateral estoppel" What the heck does that mean?

PMM

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Once you have the Memorandum of Points and Authorities prepared, then prepare a proof of service (POS) (there's a form you can fill out for that); make at least 2 copies of the P's & A's, have someone over 18 sign the POS (that should be completed showing the P's & A's were mailed to the other side on a specific date), make at least 2 copies of the POS. Put one copy of the P's & A's and one copy of the POS in an envelope addressed to the other side with postage and have the person who signed the POS mail it. Then take one copy (you can have 2 if you want, I always do 2) of the P's and A's and one or 2 copies of the POS along with the original of each document to the clerk's office and file the original and the clerk will file-endorse (date stamp) the copies and give them back. That's your proof you filed these documents and served the other side. That's it. Show up at your hearing and argue your case.

You cannot cite unpublished cases in California. I'll give you a little background. All decisions of the California Supreme Court are published and citable. The appellate courts selectively publish their decisions and only the ones they choose to publish can be cited. I personally disagree with this rule and it has been subject to some controversy lately. There was an action taken in San Francisco not long ago seeking an order that the appellate courts had to publish all of their decisions, which the appellate court denied, in a published opinion incidentally. The arguments advanced were that denying people the right to cite unpublished opinions denied them their 1st Amendment free speech rights, and rights to due process ( a number of people in criminal appeals were arguing for this). But the appellate court was unimpressed and said if they had to publish all of their decisions it not only would be unduly burdensome on them but would more importantly add nothing to the body of law. In other words, they publish cases they think are valuable and set new rules of law that serve to guide lower courts (they said that if they had to publish all of their decisions there wouldn't be enough libraries to house all of the opinions and the bulk of them would be worthless to most people and never be read anyway). Now you can always read the unpublished cases if you want and they are available on California Courts for the first 100 days after they are decided (this was a compromise decision to do this between those who wanted all of their decisions published and the Courts of Appeal that wanted to hang onto the selective publication rule).

If you really like an unpublished decision you can ask the Court of Appeal to publish it and the Justices might change their minds and do it all the time (this has happened a lot). Once again, I personally disagree with the no citation of unpublished decisions rule and think we should be allowed to cite them as long as a copy of the decision is attached to moving papers, but that's just my opinion (unpublished decisions, since they won't appear in the official reports, can be hard to locate). Frankly, I really like many of the unpublished decisions I've read and have found them helpful on more than on occasion. I can't cite them in something I file in court, but I often cite them to opposing counsel, say they are unpublished, and suggest the rule in that case is possibly how a trial court might decide an issue we are involevd in or the appellate court. Hey, I think my free speech rights allow me to cite them at least to opposing counsel, if not the court. I've frankly learned more from unpublished opinions than from some of the publsihed ones (who knows how these Justices decide what to publish and what not to?)

The Rules of Court exceptions to citing unpublished decisions are what you asked about. Now I'm not an expert on appellate practice (which is its own speciality), but I think the exception of the rule of the case has to do with citing to your OWN unpublished decision on your own case if the case is litigated once again on remand. That's if you took it up in appeal, got a decision on some part of the case, got a new trial and then in P's and A's want to cite your own case. You know what I mean?

Res judicata and collateral estoppel are similar concepts but a little different. Res Judicata means that once an action is decided by a court between parties it is over and cannot be re-litigated on the same subject matter. It's a rule of finality. Collateral estoppel says that once certain issues within a broader action are decided, they cannot be re-litigated again, even if the underlying action has not been fully resolved. It's a rule of issue preclusion. I think this is a correct statement of what each means (this is kind of old law school stuff for me) and I may not be 100% directly consistent with Black's Law Dictionary (I'm just going from memory). I think as to your question, these two exceptions to the no-citation of unpublished decisions rule mean something similar to the rule of the case. That you can cite to your own unpublished appellate case involving the same parties and cause of action if need be to apply those rules to some new case someone may be trying to bring if you need to as a defense.


Hope this helps.

My gosh, I was long-winded. Excuuuuse me!

LOL! No no no, keep it coming. This is very interesting to me. Kind of wish I had a degree in law instead of chemistry. Thank you for the instruction on filing.

Now if I may get more specific, One thing I would like to argue is tuition reimbursement. My ex was a high school drop out when we married. I supported her from her GED through a four year degree in marketing. As a result she was employed as Marketing Director for a while before she left me. She graduated more than 10 years ago. What are my chances of recouping any of that tuition? Is this the subject for a new motion? My current motion has only to do with spousal support and a possible EEO.

The next thing I want to argue is that when I lost my job, I started receiving unemployment benefit and took on 3 roommates to make ends meet (barely). The court counted the roommates rent as income WITHOUT CONSIDERING the inherent expenses involved. According to the IRS, I could deduct that portion of the house's mortgage interest, taxes, utilities, etc. when figuring income. That being the case my mortgage interest alone is higher than the income from roommates resulting in a net negative cash flow. The IRS says in pub. 527 page 5, "you must divide certain expenses between the part of the property used for rental purposes and the part of the property used for personal purposes, as though you actually had two separate pieces of property." In the marriage of Loh 112 cal rptr 2d 893, 93 cal app 4th 325, "much of the jurisprudence governing determination of income has followed, or been consistent with, basic income tax law principles." Why did the judge not consider IRS tax law principles? Can I argue this without a new motion? What are my chances?

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Originally Posted by paintmadman

LOL! No no no, keep it coming. This is very interesting to me. Kinda wish I had a degree in law instead of chemistry. Thank you for the instruction on filing.

Now if I may get more specific, One thing I would like to argue is tuition reimbursement. My ex was a high school drop out when we married. I supported her from her GED through a four year degree in marketing. As a result she was employed as Marketing Director for a while before she left me. She graduated more than 10 years ago. What are my chances of recouping any of that tuition? Is this the subject for a new motion? My current motion has only to do with spousal support and a possible EEO.

The next thing I want to argue is that when I lost my job, I started receiving unemployment benefit and took on 3 roommates to make ends meet (barely). The court counted the roommates rent as income WITHOUT CONSIDERING the inherent expenses involved. According to the IRS, I could deduct that portion of the house's mortgage interest, taxes, utilities, etc. when figuring income. That being the case my mortgage interest alone is higher than the income from roommates resulting in a net negative cash flow. The IRS says in pub. 527 page 5, "you must divide certain expenses between the part of the property used for rental purposes and the part of the property used for personal purposes, as though you actually had two separate pieces of property." In the marriage of Loh 112 cal rptr 2d 893, 93 cal app 4th 325, "much of the jurisprudence governing determination of income has followed, or been consistent with, basic income tax law principles." Why did the judge not consider IRS tax law principles? Can I argue this without a new motion? What are my chances?

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On the issue of tuition reimbursement, that would be something you would have to bring up as part of a separate motion. Assuming your disso is final and the issue was never raised in the case, this would be a motion for adjudication of an omitted asset or liability under Family Code section 2556. Assuming the motion were before the court, you could ask for reimbursement to the community (which if granted would result in an obligation on ex-wife's part to pay you one-half of the amount owed the community) for tuition, books and other expenses associated with her education. Take a look at Family Code section 2641, which controls. The education has to have "substantially enhanced" your ex-wife's earning capacity for reimbursement to be available, and there's also a "substantial benefit to the community test" which has to be analyzed. If the education was received more than 10 years before the time the disso was filed, there is a presumption, which is rebuttable, that the community substantially benefited from the education and no reimbursement should be ordered. If less than 10 years, the presumption works the other way and finds that the community did not substantially benefit and reimbursement should be ordered. This is one of the weirdest statutes and oddly written but it kind of makes sense if you read it carefully.

Think about how much money is involved and then decide whether pursuing this is worth it. FC 2641 is California's approach to education acquired during marriage. Some states recognize a community interest in a spouse's degree or professional license. California does not. Instead we've got FC 2641.

As far as a judge not recognizing your expenses in renting rooms for income, that is within judicial discretion. Self-employed people show up all the time in family law court with their Schedule C's and ask the judge to find they have negative income and thus owe no child support but it doesn't work. The court is not bound by a person's write offs or business expenses, even if the IRS is satisfied with them.

I think I am getting it. If she got her first and only degree-related job within 10 years of separation then the community did not substantially benefit from the education and she may be liable for 50% reimbursement of tuition, etc. Previous jobs had only been retail sales minimum wage type jobs except a few years when she was a realtor. She made substantial amounts but when the market crashed went to zero. It's worth a shot though. I may wait until this current action is over before filing another motion.

As far as my room mates, you say it is up to judicial discretion. That is not good because the judge has already ruled against me. Now if I move out and rent a room somewhere and rent out my house completely, It becomes 100% rental property. There will still be negative cash flow of my house as a rental property. Are you saying the judge still has discretion over separate rental property to disregard expenses? Please say it isn't true. There is no child support at issue. That would be completely crazy if rental property were my main business and the judge said all income was profit disregarding legal expenses. We use schedule E for rental property, by the way.

I'm not sure if I can help with the whole tax thing and rental properties but I'll give it a shot. For tax purposes if you have a house that even part of it is used for something else such as business or rental that part has to be divided out. If it is a house that you rent out six months of the year then you have the other six months then it is divided that way. If you are renting out certain rooms then you deduct the square footage of those rooms from the entire square footage and what ever percentage is left is what you can claim on your taxes. (I have to say I can go on and on about this for an hour and you like others still might not completely get it but like I said if you need more clarification just ask). So, if you are trying to show a negative cash flow with renters (even if you are completely out of the house and it is strictly for rent) the judge will just say "raise your rent". It isn't practical to have a negative cash flow with renting and it won't help you in court at all. For your taxes it can give you a slight break but it would be in your best interest to put a little money into having your taxes done right vs. completely doing them alone.

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Originally Posted by paintmadman

I think I am getting it. If she got her first and only degree-related job within 10 years of separation then the community did not substantially benefit from the education and she may be liable for 50% reimbursement of tuition, etc. Previous jobs had only been retail sales minimum wage type jobs except a few years when she was a realtor. She made substantial amounts but when the market crashed went to zero. It's worth a shot though. I may wait until this current action is over before filing another motion.

As far as my room mates, you say it is up to judicial discretion. That is not good because the judge has already ruled against me. Now if I move out and rent a room somewhere and rent out my house completely, It becomes 100% rental property. There will still be negative cash flow of my house as a rental property. Are you saying the judge still has discretion over separate rental property to disregard expenses? Please say it isn't true. There is no child support at issue. That would be completely crazy if rental property were my main business and the judge said all income was profit disregarding legal expenses. We use schedule E for rental property, by the way.

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On tuition reimbursement keep in mind that if the education were received more than 10 years ago the presumption works against reimbursement because the idea is that with the passage of time the community has received (through the one spouse's enhanced earning capacity) the value of what was paid out for educational expenses. If less than ten years,the presumption favors reimbursement. Imagine your wife received her MD degree the day before she has you served the divorce petition yet the community spent $250,000 on her education. She hasn't made a dime yet off the education but will now, after she's long divorced from you. In that case reimbursement to you of $125,000 seems pretty fair, right? If the degree were received 10 years or more before she files for divorce presumably she's worked as a doc the last 10 years and made back all that money that was spent on the education, which you've enjoyed being married to her. No reimbursement needed, right? Seems fair, right:)

With the rental issue, yes all the judges I've seen will accept your mortgage and property tax expenses on rental property as an offset against the rent received if the entire house is rented out. I've never seen that as a problem. But with rented rooms that's another matter. I suppose one way of looking at is that you had the use of the house yourself when you rented out the rooms and you would have had the same expenditure for mortgage and property taxes anyway, with or without the roommates. So for simplicity we just treat the income from the roommates as net income to you without reduction for mortgage and taxes. I've never seen a judge do some fancy analysis that would result in you having no rental income under those circumstances. That's just not going to happen. A judge here or there might listen to you but I doubt it. Not with just rooms rented while you live there too.

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Originally Posted by stinawords

(even if you are completly out of the house and it is strictly for rent) the judge will just say "raise your rent". It isn't practical to have a negative cash flow with renting and it won't help you in court at all. For your taxes it can give you a slight break but it would be in your best interest to put a little money into having your taxes done right vs. completely doing them alone.

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Thanks for your response. I am not worried about doing my taxes. The IRS I can deal with. It is the family law judge that is a problem.

I agree it is not a long term solution to have a negative cash flow, although I have done so in the past, just to hold on for tax purposes and appreciation. Facing the reality of my situation, I have listed my house for sale. But I am not holding my breath on that possibility.

The point is that I am unemployed and took on room mates only to make (barely) the mortgage payments. When I went to court the judge considered the room mates rent as 100% income (no expense deducted) and ordered me to continue making alimony payments, albeit reduced somewhat. If I move out and rent a room somewhere my home becomes a 100% rental property. If I rent my room out for a reasonable amount based on current rents I will be negative about $250/mo (assuming nothing breaks).

I just read and am encouraged by cadillac59's (Thank You) response that this may be accepted by the judge as a legitimate enterprise and reduce my apparent income for spousal support purposes.

One more question (and there always is) I live in my garage which I have converted into a self-contained living space with separate entrance, bath, office space and food prep/frig area. I rarely go into the house proper. Might the judge see this as a separate domicile for income purposes?

PMM

Is your garage separate from the house or attatched? Have you gone through with having it permited so that you can have a separate address for it such as 1013A for the house and 1013B for your apartment part?

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Originally Posted by stinawords

Is your garage separate from the house or attatched? Have you gone through with having it permited so that you can have a separate address for it such as 1013A for the house and 1013B for your appartment part?

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No permits and not separate.

One of the things you might want to do, if you have the time, is sit through your judge's morning OSC calendar just to get an idea of how he or she handles other people's cases (I had a client who is a real worry-wart, little granny type of guy, do this once) Is your judge patient, does he give people a lot of time or does he make short shrift of them and send them on their way? Does he know the law? Find out how long the judge has been in a family law department? Was he a certified family law specialist in private practice in the past (which is always a VERY good sign) or was he rotated in from a criminal bench assignment at the beginning of the year (if your judge makes everyone stand up when he comes in and runs the place like a boot camp, he's probably came from a criminal law assignment)? All these things can make a huge difference in your case and the outcome.

My favorite judge where I practice (he's a court commissioner actually) was a certified family law specialist in the past. He only does family law but has his quirks. The running joke (other than starting court 40 minutes late each day) is that he'll spend 40 minutes on one person's case telling them why he doesn't have 40 minutes to spend on their case! In his chambers he's got old newspapers stacked up on his desk and on the floor going back about 6 months, but he's the best family law judge we've got, knows the field and he gives people their day in court, even on a 20 minute OSC calendar. He loves scolding people, and will say, "forgive me but look at all these other people in here, they want to see me too..I can't spend all day on your case!"

Learn a bit about your judge and then fashion your arguments accordingly.

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Originally Posted by cadillac59

Learn a bit about your judge and then fashion your arguments accordingly.

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I don't know if it is proper to name drop but:

My judge is a young woman, Santa Clara Superior Court, who was slipped in after my first judge, another woman, was promoted. In hindsight, I don't believe she is unduly biased. But I had such careless representation things largely went against me. I was always reeling and hurting from new twists that my counsel didn't prepare me for. But the judge is definitely NOT blazing new territory or taking any chances. She will not make any judgments unless forced to. I never got the trial I wanted, was always advised to settle, settle, settle. Whenever I got stubborn, it came back to bite me hard in the arse. Again in hindsight, she wasn't biased just following the letter (not necessarily intent) of the law. OPC was always one step ahead and smarter. I could swear my last attorney sabotaged my case. OPC made an offer before the trial (that never happened) for a reasonable alimony amount. The offer had an expiration date and time. My counsel failed to notify me until the day AFTER expiration. She said she left a page on my phone?? Is that? Apparently you can't tell the judge about such things?? I started to speak and OPC objected, that was that. The judge awarded twice that amount of alimony, no termination date.

I have listened to the judge while waiting for my case to come up. She seems very even, efficient, child welfare concerned, not preachy or quirky. I, on the other hand, always seem to start even tempered and get more upset as the proceedings continue. My problem is the I-can't-let-go-of-even-for-my-own-good belief, down deep in my gut, that I should not have to support a woman who wronged me so. I'm sure it shows and doesn't help my case. Better preparedness is the key. In that way, you have helped me tremendously. I know there is no sure thing but at least knowing worst case/best case/probable outcome is a huge help to me. I will attend a session or two before mine to get even better feel for this judge.

PMM

My problem is the I-can't-let-go-of-even-for-my-own-good belief, down deep in my gut, that I should not have to support a woman who wronged me so.

Oh, you've got a lot of company on that one! I don't know if you ever heard of it but true story: there was a lady once who hired a hit man to try to knock off her husband after they separated. I think the husband dodged the bullit in a bar or something and the lady was later convicted of attempted murder. I don't know the details of the story, but she later (maybe after doing some prison time) came into court and asked husband to pay spousal support! The judge, in reflecting on California's no fault divorce law, said, "hey, no fault is no fault, sounds like ex-wife gets the support." [only in California, right?] So he orders the support. Well, the legislature didn't like that result which is why we now have Family Code section 4324. You don't get spousal support if you're convicted of attempted murder of your spouse.

I've never been down to San Jose on a case so I don't know any of the judges there (I got as far as Redwood City on one once).

I know there is no sure thing but at least knowing worst case/best case/probable outcome is a huge help to me.

That's what we do as attorneys most of the time anyway, try to figure out exactly what you said about probable result, best case vs. worst case scenario, etc. That's the way to approach it.

Getting to know your judge helps. I get along pretty well with the judge I mentioned; he'll usually call my case first if I'm in his courtroom if the other side is there probably because he likes me, but it's all professional, I don't know the guy off the bench. But even so I've still been scolded before by him on more than one occasion. He got mad at me and this lady attorney once because we were arguing about something too long and said he was going to just "reiflerize" the case (decide it on the declarations and disregard our arguments) if we didn't stop. Sometimes he's not interested in complicated arguments either, maybe like the one you'd like to make about rental income from rooms in your house and deducting mortgage and tax obligations to show no net income.

I tried once to have this judge impute income to wife in a case in which I represented husband. She claimed a disability and didn't work but she had received a $100,000 inheritance which she used to pay down the mortgage on the family residence she was occupying. Her mortgage payments were only about $400 per month because of the paydown of the loan, so I tried to argue she should have $1,000 of non-taxable income imputed to her on the dissomaster because that's how much she was saving on rent or a mortgage (round about) by having used her inheritance this way. I argued that had she put the money in an investment she would have had something in return and that surely would have been used as income to her in calculating support. But this judge wouldn't buy it. I told him I didn't think there was much of a difference in paying down your mortgage and saving x dollars per month in living expenses and investing it somewhere and earning the same as a return on the investment, and he said, 'There's a big difference' and then he said, "Mr._____, I'm not going down that road, you can argue that at trial if you want but I'm not going down that road here!!." So he didn't want to go down that road, as he likes to say. but I don't know what the big deal was. That's the problem with some of these fancy arguments, the judges sometimes just don't want to bother with them. Hey, but there is nothing wrong with trying.

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Originally Posted by cadillac59

You don't get spousal support if you're convicted of attempted murder of your spouse.

That's the problem with some of these fancy arguments, the judges sometimes just don't want to bother with them. Hey, but there is nothing wrong with trying.

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As for attempted murder, Thanks for the tip, I will keep that in mind, LOL.

As for the fancy argument, I will make it simple, I will move out. I already have a friend with a room. Should I be preemptive and enter exhibits (a canceled rent check, PO Box receipt) and file another declaration or just wait and see? Guess that's where going to court and observing will help.

Thanks for all you do
PMM

New question: I am getting nervous because OPC has not responded to my motion yet. Last time he responded within a week. I filed on Nov 7. We have a court date on Dec 23, how long can he wait to respond before the hearing? They just might stipulate cohabitation. She will be admitting she lied but they will probably claim he is not contributing to support. In which case I will argue that she is supporting 2 people therefore Alimony is not needed. Waddya think?

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Originally Posted by paintmadman

New question: I am getting nervous because OPC has not responded to my motion yet. Last time he responded within a week. I filed on Nov 7. We have a court date on Dec 23, how long can he wait to respond before the hearing? They just might stipulate cohabitation. She will be admitting she lied but they will probably claim he is not contributing to support. In which case I will argue that she is supporting 2 people therefore Alimony is not needed. Waddya think?

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A Responsive Declaration to OSC or Notice of Motion is due 9 court days before the hearing (leave out court holidays and weekends). So there's still time.

By supporting 2 people you mean herself and him? That's not bad. All you are saying is that her expenses are artificially inflated, which would be true in that case. Sounds like it's worth a shot but it really sounds like the judge needs to set your case for an evidentiary hearing (trial) and that would be all I would expect to happen on Dec. 23rd. All you need to think about is how much time you need, two hours maybe? Unless you have a stip, most judges will set a modification of long-term spousal support for trial because they feel normally except in really simple cases) they cannot decide these kinds of things on a 20 minute calendar (my favorite judge would have fun with your case particularly if you argue your ex is supporting the boyfriend).

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Originally Posted by cadillac59

A Responsive Declaration to OSC or Notice of Motion is due 9 court days before the hearing (leave out court holidays and weekends). So there's still time.

By supporting 2 people you mean herself and him? That's not bad. All you are saying is that her expenses are artificially inflated, which would be true in that case. Sounds like it's worth a shot but it really sounds like the judge needs to set your case for an evidentiary hearing (trial) and that would be all I would expect to happen on Dec. 23rd. All you need to think about is how much time you need, two hours maybe? Unless you have a stip, most judges will set a modification of long-term spousal support for trial because they feel normally except in really simple cases) they cannot decide these kinds of things on a 20 minute calendar (my favorite judge would have fun with your case particularily if you argue your ex is supporting the boyfriend).

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That would be about Dec 10. I am on pins and needles until then. If the judge just sets the evidentiary hearing I expect she will not suspend alimony and I will still be paying alimony until next hearing. But I think you said something about asking for any decision to be retroactive to the date of the motion. If I get a stipulation of cohabitation I would hope it is retroactive to start date. Is it customary to ask for financials and a start date? My evidence shows April 2008 in South Carolina but they were cozy for 3-4 years in St. Louis. Anything else I should ask for?

PMM

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Originally Posted by paintmadman

That would be about Dec 10. I am on pins and needles until then. If the judge just sets the evidentiary hearing I expect she will not suspend alimony and I will still be paying alimony until next hearing. But I think you said something about asking for any decision to be retroactive to the date of the motion. If I get a stipulation of cohabitation I would hope it is retroactive to start date. Is it customary to ask for financials and a start date? My evidence shows April 2008 in South Carolina but they were cozy for 3-4 years in St. Louis. Anything else I should ask for?

PMM

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Yes, you should ask the judge to reserve jurisdiction to retroactively modify back to when the motion was filed (you can't change the support order to a date before filing). Even though the court might say this is always reserved, ask anyway so there's no argument about it and it's on the record.

The last time I did one of these (only last month actually) the judge did give us a temporary reduction in spousal support; he then set it for a trial and also reserved jurisdiction to retroactively modify (even reinstate support back to its prior level if it seemed justified after trial).

Why not ask the judge to temporarily set support at zero without prejudice subject to retroactive mod based on what happens at trial? That way if the judge rules in your favor at trial and grants retroactivity you don't have to worry about recovering back what you have paid out pending trial. She might do that and you'd probably feel a lot better about it. Like I said, the judge did it for me in that one case (he's a different judge than the one I've mentioned before). That might be because I've been getting along with him really well lately on some other cases but ask for it. I would.

Ok, I will ask the judge to set support to zero. You say she can't set the retroactive date to before the motion was filed but she can certainly sanction my ex for hiding the cohabitation for months, if not years, can't she? And that can mean money or credit towards any future alimony?

If I do have to go to trial, What is the basic format? I am guessing I will articulate what I have already written? Then I get to directly question my ex?
Then summarize and ask again that support be terminated? If not I have asked that it be set to zero. If not set to zero, I have asked that her EEO be reinstated because she is not working in her degreed field and underemployed.

What else should I expect?

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Originally Posted by paintmadman

Ok, I will ask the judge to set support to zero. You say she can't set the retroactive date to before the motion was filed but she can certainly sanction my ex for hiding the cohabitation for months, if not years, can't she? and that can mean money or credit towards any future alimony?

If I do have to go to trial, What is the basic format? I am guessing I will articulate what I have already written? Then I get to directly question my ex?
Then summarize and ask again that support be terminated? If not I have asked that it be set to zero. If not set to zero, I have asked that her EEO be reinstated because she is not working in her degreed field and underemployed.

What else should I expect?

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Yes, ask the judge to set support at zero but emphasize it just be set at zero for now, without prejudice (which means she can change her mind later about it after trial if she thinks you didn't prove your case). That way you have a better chance of getting it (it might still be denied and she might just leave the current order in place pending trial, you don't know).

As far as sanctions for hiding the cohabitation, that's possible I suppose if there was actual concealment. The sanctions would be in the form of attorney fees and costs I would think, or for her not agreeing to a modification when requested (seems like kind of a long shot, though). I wouldn't hold my breath on that one.

At trial yes, you'd testify about your income, her cohabitation, her income and then her earning capacity but you might need a vocational evaluation if you want to prove she's not working to her capacity. You need evidence you see of her ability to have a particular career and the opportunity to be employed in her field. It's ability and opportunity (for employment). She might argue that even if she's got the skills there are no jobs out there. You need to show there are jobs in her field and that she's still employable to impute earning capacity to her. You may need a voc eval for that.

Promise me that when this is all over you'll go back to law school and become a family law attorney because you seem to have a knack for it:).

Got it. Set support to zero, without prejudice. So the sanctions are just about attorney fees and court costs or a public scolding, not about chunks of cash being paid by one side to the other?

We had a Voc Eval done in 2006. I know the economy is in the toilet but can't we still use that one? I am glad I don't have to show that she could find a job in S.C. It's kind of backwater. If she'd stayed Silicon Valley she would definitely be employable. The Voc Eval said she would, as a marketing director or advertising exec. be making $50,000+ instead of $25,000 as an activities assistant in an assisted living facility.

She received her degree in 1998, got her first job in that field in 2001, got up to $4500/mo, left the job in 2003, met the BF in 2004, left me and filed in 2005. So I guess I can think about tuition reimbursement at a later date.

Mmmmh, law school? Well, this case has me obsessed, that's for sure. I could get a great deal of satisfaction helping other poor slobs in their hour of need. I have dated a lot of women in the last two years and they have had some sad stories too. Most just wanted to get away from the ex, not strip his bones clean. Oh well, I guess I was just lucky...

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Originally Posted by paintmadman

Got it. Set support to zero, without prejudice. So the sanctions are just about attorney fees and court costs or a public scolding, not about chunks of cash being paid by one side to the other?

We had a Voc Eval done in 2006. I know the economy is in the toilet but can't we still use that one? I am glad I don't have to show that she could find a job in S.C. It's kinda backwater. If she'd stayed Silicon Valley she would definitely be employable. The Voc Eval said she would, as a marketing director or advertising exec., be making $50,000+ instead of $25,000 as an activities assistant in an assisted living facility.

She received her degree in 1998, got her first job in that field in 2001, got up to $4500/mo, left the job in 2003, met the BF in 2004, left me and filed in 2005. So I guess I can think about tuition reimbursement at a later date.

Mmmmh, law school? Well, this case has me obsessed, that's for sure. I could get a great deal of satisfaction helping other poor slobs in their hour of need. I have dated a lot of women in the last two years and they have had some sad stories too. Most just wanted to get away from the ex, not strip his bones clean. Oh well, I guess I was just lucky...

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I think your voc eval is too old to use but you might go to the evaluator and ask for an update based upon the current economy and ask the evaluator assume your ex is still in good health. That might be an inexpensive way of doing it. Be sure the ex is noticed on what you are doing so that there are no surprises. Then call the evaluator to testify at trial.

Most commentators would agree that if she moved to SC and hasn't the same job opportunities there as in California that's her problem. The court should assess job opportunities and income as if she were still in California and impute income on that basis, not based on what's going on in SC. After all, the move was her choice.