November 9, 2009
Process Served via Facebook – What’s next?
Recently an Australian Supreme Court allowed formal service of court papers to two individuals via Facebook after several failed attempts to personally serve the documents to the individuals’ homes and via email. The court agreed that this was a valid way to provide service after examining their on-line profiles and determining they matched the individuals in question.
What does this mean for U.S. litigation practices?
An individual located within a U.S. judicial district can be served by leaving documents at an “individual’s dwelling or usual place of abode…” according to Federal Rule of Civil Procedure 4(e)(2)(B). This is accepted in California only after Personal service has been attempted, and then “substituted service” is appropriate as stated above by leaving the documents at the residence in addition to mailing a copy of the same documents. It’s generally understood that “dwelling or usual place of abode” refers to an individual’s physical home, though one could assume that a court could expand it’s definition of abode and interpret this as including a virtual abode.
While there is no record yet of courts in the U.S. allowing formal service via Facebook, prosecutors are commonly permitted to use materials and photographs obtained from social networking websites as admissible evidence in court for a variety of proceedings.
Be Careful what you post on Facebook.
Examining the potential legal ramifications of how one would be judged by a court of law according to their on-line profile, begs the question of what is appropriate content and what level of accessibility should I allow to this data. Basically would I want the contents of my on-line profile being bandied about in a court of law?
Secondly, the information super-highway and it’s latest byway of social networking seems to be a double-edged sword. Facebook has allowed users to connect more easily to friends and family but at the same time it can make one more accessible to the law. The future of process servers may soon be as simple as logging into Facebook. No more frantic games of hide and seek all over town and prolonged multiple attempts, searching for an illusive individual that needs to be served.
http://www.dlapiper.com/facebook-the-future-of-service-of-process/
October 12, 2009
Does Bankruptcy Eliminate Child Support In Some Cases?
I think this is pretty ridiculous, because in this case the child suffers here. A Georgia woman is being held personally liable for seeking child support payments from former University of Alabama and pro basketball player Jason Caffey after he had filed for bankruptcy protection.
U.S. Bankruptcy Judge Margaret A. Mahoney ordered Karen Russell to pay Caffey $57,470.50 after determining that an arrest warrant issued against the former Davidson High School standout violated rules prohibiting creditors from seeking debt collection during bankruptcy proceedings. Which seems like an oxymoron in my opinion.
At least here in California, child support payments are excluded in a Bankruptcy proceeding and thus it would seem absurd to fine someone who is attempting to collect child support payments. Each parent is financially responsible for caring for their children, bankruptcy doesn’t eliminate that responsibility and it seems as though mom is being punished here for collecting what she is owed. I truly hope someone takes a good look at this case and determines (like I have) that there is obviously a problem!
Caffey once starred at the University of Alabama before playing seven years in the NBA. Lately, he’s known more for fathering 10 children by eight different women. Many of those women – including Russell – have sued for child support, which prompted him to file for Chapter 11 protection in August 2007.
September 21, 2009
Divorce Issue: Determining Child Support When the Payer is a Business Owner
This is a touchy subject considering that most business owners report as little as possible on their tax returns and most businesses (at least service businesses) do not show much of a “surplus” of income. Not to mention that in cash businesses, it’s easy to ‘forget’ to report all cash!
When determining income, both parties to a divorce are required to complete a Income and Expense Declaration and sign under penalty of perjury. If either party is a business owner they are also required to bring tax returns and recent profit and loss statements to any court hearing on the matter.
Although most people are basically honest, on the subject of how much a business owner really makes it seems that more often than not they make more than an initial look at their books reveals.
So the next step is to subpoena bank records (business and personal) to determine if what the business owner reports as income actually matches what was deposited to all bank accounts and to look at and verify what is listed as expenses.
For example, if it’s stated that income from a business is only 5000 a month, but the expenses show 9000 a month and there is no other source of income, then this helps establish that the facts are being stretched and the business owner is earning more money than stated. Tip to business owner: Don’t overstate your expenses if you don’t want this used against you.
If initial review of the bank records shows a real discrepancy, sometimes a “forensic accountants” needs to be brought in to better determine the earnings of a business owner. Even with all this it is not easy to calculate it to the penny.
To top it off, it can be hard to collect support from an unwilling business owner. Issuing a wage garnishment order to a business owner to garnish their own checks is not very effective!
September 4, 2009
‘T-Pain’ Celebrity Child Support…
It has been reported that rapper, “T-Pain,” real name Faheem Rasheed Najm, left his attorney’s office on Friday, August 28, 2009 after an attempt to settle a child support battle with the mother of his child, Elisa Hood, aka Ms. Cherry of VH1’s Miss Rap Supreme.
According to submitted documents, T-Pain earns an estimated $15 million a year and is only paying approximately $2,000 a month in child support. Just very surprising to me that T-Pain would not offer something a little more reasonable, considering the odds are against him should he wish to fight this battle in court!
At least in Los Angeles County, depending on how much time he spends with his son and depending on how much money Ms. Hood earns, the court could end up ordering him to pay over 10,000 a month in support 
payments. I hope T-Pain’s attorney explains to him that the courts attempt to ensure that the children live in the lifestyles of BOTH Parents and $2000 a month when you make $15 million a year is NOT the same lifestyle.
After the laundry list of celebrities who were required to pay hefty support payments this year (Tyrese, Nas, etc), I would think T-Pain would attempt to settle this matter out of court!
July 22, 2009
Child Support Calculation: What You Say in a Loan Application May Be Used Against You
Although not so frequently allowed now, home loan or business loan applications using ‘stated’ or ‘declared income’ have been completed by millions of people in recent years.
If you have a loan document out there with stated income and if you are involved in paying or receiving child support, then that document could be called upon to establish your income and thus set a child support payment amount. And given that it’s unlikely that you understated your income, a little white lie on a loan form could come back to bite you.
Many times business owners apply for various loans using stated income. Many homeowners have used this option as well. There is no down side to this regarding child support payments unless the income was exaggerated. What many do not realize is that stated income can be used to calculate Child Support payments!
Meaning, if you only make $4,000 a month, but you declared that you make $10,000 a month on a loan document, the Court has the discretion to use the $10,000 figure as fact if there are no income tax documents filed to show otherwise. Consider this: when you sign a loan document, you are stating that all the data you provided was true under the penalty of perjury!
Even if you have filed your personal taxes, if there is a difference between them and your declared income on a loan application, then you could find yourself in front of a judge holding both documents during a child support hearing. Not fun.
Most times a loan document gets brought up if the support payer has not filed tax returns and there is no other way to determine income. Even if a loan document is called into evidence a business owner who is paid through the business and has check stubs and checking account deposit records can use this evidence to rebut the loan documents. Still, not fun!
Bottom Line: If establishing income of your ex is a problem, consider finding and using loan documents that have a stated income. On the other hand, if you have been making it difficult for your ex and the court to establish your income and you have some stated income loan applications out there, then you had better reconsider your tactics and get real income facts established fast.
Child Support in California 