FAMILY LAW ARTICLES

IF YOU SIT ON YOUR RIGHTS, YOU WILL LOSE THEM.

We have recently been dealing with a number of clients who have, to their dismay, discovered that the Court does not, and cannot, go endlessly back in time to make all things equal.  This premise is contained in the maxims of the California Civil Code, Section 3527:

“The law helps the vigilant, before those who sleep on their rights.”

While maxims are not controlling, they are provided to us to better enable the Courts to administer justice.  This principle has filtered down into nearly every aspect of law.  Most people are familiar with the concept of statutory limits, i.e., the time within which one must file an action with the Court before one loses the right to do so.

How does this apply to family law?

Consider these few examples:

• Child Custody.  We recently had a case in which the non-custodial parent left the state, with the children who were subject of the existing order.  Yet, the “custodial parent” did not seek help until a year had passed – by that time, the child had a new status quo which the Court was reluctant to disrupt.  In that case, the delay was deemed to be an implied consent by the former custodial parent; and the non-custodial parent became the children’s custodial parent.
• Domestic Violence. If one party has in the past committed brutal acts against the other, but the abused party doesn’t seek a protective order within a reasonable period of time, the former incidents of abuse can become “stale.”  This is exceptionally painful to abused spouses, as the reason they delayed is often fear of further violence.  Anyone in this position should seek counsel immediately.
• Unenforceable debt.  Where one party’s parents loaned (or gifted) money to the parties to buy a home or start a business while the marriage is good – then when the marriage falls apart, the spouse whose parents loaned the money will want to have that considered a debt in the divorce proceedings.  The parents may even have a promissory note, or the parties may even have made a few repayments.  However, if no payments were made on the loan for four (4) years, and the parents filed no action to collect for that length of time, this should become an unenforceable debt.
• Child support.  Even if the other party is rolling in dough and has not seen the child for two years, the Court cannot order child support to be paid retroactively beyond the date the Request for Order for Child Support was file and served on the opposing party.
• Temporary Spousal support.  The wage-earning or high-earning spouse does have a duty to support his or her spouse from date of separation onward.  However, if the payor spouse is not paying voluntary support to the payee spouse, payee spouse had better file a Request for Order for Spousal Support at the earliest opportunity.  Spousal support can be ordered by the Court, but only retroactive to the date the Request for Order was filed and served on opposing party.  You cannot collect for missed months.
• Post-Judgment Spousal Support .  Similarly, if payor spouse suddenly has a decrease in income, payor spouse needs to file the Request for Order to Modify Spousal Support as soon as possible; if not, payor spouse will be on the hook for spousal support at a rate that reflects the previous, higher income until the date payor spouse’s Request for Order is filed and served on payee spouse.

If you have been delaying seeking judicial intervention for anything which occurred recently, or even in the past couple months, it is vitally important that you act on your rights quickly.  If you are uncertain whether or not your should take action, contact us at  (805)-639-0600.