Category

Family Law Blog

What Is Spousal Support?

what is spousal support | photo of coins stacked up | minella law

Spousal support, also known as alimony, is a legal obligation on a person to provide financial support to their spouse. Spousal support is generally issued in connection with legal separation or divorce cases. One spouse pays the other ex-spouse – whether the husband or wife – a certain sum of money. Courts may require this if one party earns much more than the other, and the other one needs assistance in maintaining their lifestyle close to the marital standard. It is generally awarded to a spouse who makes a lower income or has been out of work during the marriage. The purpose of spousal support in California is to preserve a person’s financial status to the greatest extent possible.

Spousal support is broken down into two types: temporary (pendente lite) or permanent (post-divorce judgment). Temporary spousal support is awarded during divorce proceedings and meant to maintain the living condition of both parties before divorce is finalized. Permanent spousal support is awarded after divorce is finalized and it is to provide the lower-earning spouse with adequate income to ensure that their needs are met and they’re able to maintain their standard of living.

Check Out Our Alimony & Spousal Support Resources Page >> 

Spousal support payments can be made on a monthly basis for a predetermined period of time, but can also consist of a single lump-sum payment. In some cases, spouses can have an agreement on the amount and conditions of support. And if the agreement meets legal requirements, it will be upheld by the court, even if it means that the lower-earning spouse will not receive any support.

Eligibility for Spousal Support in California

Spousal support is issued on a case-by-case basis, but in most cases, only persons who have been married for a longer duration (usually over 5 years) are eligible for support. Other factors that the court will take into consideration when making the support determination include:

  • The assets and property owned by each spouse
  • The earning capacity of each person
  • Whether the parties shared a business
  • Whether one party has significant debt
  • Each party’s contribution to the relationship
  • Physical and mental health conditions
  • Whether the parties had a prenuptial agreement that set forth spousal support provisions

Length of Spousal Support

The length of spousal support is usually tied to the length of the marriage. As a general rule, the court will not order support for more than half the length of a marriage that lasted less than 10 years. However, the court will not set definite spousal support duration if a marriage lasted 10 years or longer. The party who pays will bear the burden of proof to show that spousal support is not needed at some point in time. 

While post-divorce spousal support is often referred to as “permanent,” it is increasingly rare for true permanent support to be awarded, even for longer marriages. California courts require the spouse being supported to make efforts to become self-sustaining. A spouse who claims an inability to become fully employed or inability to work will have to support the claim with evidence. True permanent spousal support generally applies to spouses who cannot become self-supporting due to age or disability.

Spousal Support Modification

Once the court issues a spousal support order, it becomes final and enforceable by the law. The orders can, however, be modified due to unique or special circumstances that occur later on. For example, if one spouse loses their job and cannot pay or the other spouse gets a job or a significant rise in income, spousal support can be altered or terminated.

Hiring an Attorney for Spousal Support Issues

Filing for spousal support in California can require many statements, documents and other items needed to support a party’s arguments. You’ll also need a thorough understanding of the law to avoid hurting your case. A qualified family lawyer can help review the terms and negotiate with the other party to ensure that your needs are covered.

If you’re considering filing for alimony in California, or simply have questions, contact us for a free consultation today!

Do I Need a Lawyer For My Child Support Case?

lawyer

Under California Family Code section 3900, both parents have a duty to support their minor children until at least the age of 18. There are times the requirement is extended, such as when a child is disabled. A support obligation may also continue until the age of 19 if the child is still in high school and/or unmarried. The code dictates that minor children must be supported “in the manner suitable to the child’s circumstances.”

How to Get a Child Support Order

Whether you are the parent seeking support or the one being asked to pay it, if you’re about to start on a child support case you have several options for handling it. You can contact a local child support agency, hire a family law attorney, or use the services of a family court law facilitator. 

California Code Section 4053 sets out a mandatory formula the court must take into account regarding child support.

  • Both parents have a mutual obligation to support their child.
  • The obligation is based on each parent’s income, time with the child, and ability to pay.
  • Child support may also improve a custodial parent’s standard of living if it improves the child’s standard. This also reduces the disparity between each parent’s standard.
  • There is a presumption that the parent who has the majority parenting time already contributes significant resources to the child’s care.

California’s child support guidelines are meant to reduce conflict between parents and decrease the need for litigation. Above all, they are designed to protect a child’s best interests.

Whichever method you choose for obtaining an order, you will need to supply the court with certain information and documents.

How to Start the Process

Child support cases often, but not always, start during divorce proceedings. Paternity actions are also common. No matter who handles the process, it all begins with a “request for order.” An accurate income and expense declaration must also be included. 

While child support agreements must meet certain legal guidelines (and must gain the approval of child support services, if involved), the court will generally allow parents to create their own agreement if it’s in the interest of the child. 

Keep in mind that if you use Child Support Services to help you obtain a support order, it may prolong the process to obtain the final signed order.

Do You Need a Family Law Attorney?

It is certainly possible to handle a request for child support without the services of an attorney. But California family law can be complicated. An experienced family lawyer can help ensure:

  • Your child or children get the financial support they need.
  • Your financial standing is correctly represented in court.
  • You’re adequately represented for a modification or if you get behind in making court ordered payments.

One of the greatest benefits to working with a family law attorney is she or he is knowledgeable about the most recent changes to the California Family Code. For example, in 2019 there were important changes made relating to parental duty and a child’s right to be supported in light of a parent’s earning capacity. 

The California courts consider many variables when calculating a child support order. Even if both parents agree in advance on the amount of child support, the court will apply conditions like the needs of the children being adequately met. 

A child support agreement can have far-reaching implications for your child and should not be taken lightly. Many family law attorneys offer a courtesy consultation and the time invested in one can be very well worth helping you decide how to proceed.

Can California Child Support be Changed Without Going to Court?

Types of Restraining Orders in a Divorce

In California, a change in child support must be approved by the court but it is possible to modify your child support order without stepping foot inside a court room. Parents may come to an agreement outside the courtroom, but they will still need to file a stipulation or request a change to the original order by filing a motion for modification with the court.

Child Support in California

Parents in California have a legal obligation to financially support their children, typically through the age of maturity (age 18). Sometimes a situation arises where the parent ordered to pay support cannot or does not want to continue paying. Some parents simply stop making the payments altogether. 

California law does not look kindly on parents who fail to make their child support payments or who take it upon themselves to make a change in those payments without approval of the court or the person receiving support. If a change is required in child support due to a life event or situation, the law requires the paying parent follow proper legal procedures. If you do not have your order changed properly, this could mean financial ramifications for you down the road including losing your drivers license or passport.

Reasons for a Child Support Modification

California courts recognize there are many reasons why a child support order might need to be changed. The basis for modification is often referred to as a “change in circumstances.”

  • One or both parents has had a change in income.
  • A parent has lost their job.
  • One parent has been incarcerated.
  • There is now another child from another relationship.
  • How much time the child spends with each parent has changed significantly.
  • Costs for the child’s current healthcare, education, and/or childcare have increased.

The court will also consider a modification when any of the factors used to calculate child support have changed.

It’s crucial that anyone who anticipates or has a change in circumstances let the original family court know immediately that they need the child support order modified. If you’re the parent unable to make payments, ignoring the situation can have serious, negative legal consequences.

How to Get a Child Support Order Modified

You have several options for starting the modification process: contact a local child support agency, hire a family law attorney, or use the services of a family court law facilitator. No matter who you choose to ask for assistance, you’ll need the following information when requesting a modification

  • Current income and expenses.
  • Proof of childcare expenses.
  • Medical insurance.
  • Unemployment benefits.
  • Retirement income.
  • Disability information such as SSI, SDI, and SSA.
  • Jail or prison status, if applicable.
  • Current and proposed custody and visitation arrangements.

California courts generally believe a modification is in order when the change is either 20% or $50, whichever is less. Keep in mind that if the request is approved, the court will not apply the change to outstanding back payments. The new amount applies only to future support payments unless you agree otherwise.

If you and the other parent can amicably agree on the changed amount, you can sign an agreement or stipulation and submit it to the court for approval. If you cannot come to an agreement, the court will set a hearing date at which time the judge will review the request and, if she or he agrees with the changes, issue a new order.

Child support is ordered to ensure that children are taken care of after their parents no longer live together. There are many valid reasons for seeking a change in child support including the loss of a job, serious injury, or a change household income. It can be a complicated process, especially when the parents do not agree. A great way to start, even if you have reached an agreement, is to speak with an experienced family law attorney who can guide you through the process.

Can I Change My Child’s School During a Divorce? (even if the other parent does not agree)

child-school

One issue that often comes up during a divorce is the dispute over where the children will attend school after the parents have moved in their separate directions. Sometimes, one parent wants to change the school their child attends, even if the other parent opposes the idea

Whether you can move your child to another school without your former spouse’s approval depends on the custody order issued by the judge:

  • If you were given sole legal custody, then you have the right to choose which school your child will attend without the other parent’s approval.
  • If you share joint legal custody, you and your former spouse must agree on which school to send your child to.

This post addresses issues that come up when parents share joint legal custody.

Parental Consent on School Issues

If your joint custody/parenting plan doesn’t already spell out which school your child will attend, then you and your former spouse must either come to a mutual agreement, agree in mediation, or file a motion asking the court to make the decision for you. If you ask the court to decide, it will base its ruling on what it things is in the best interests of your child. Factors the court considers include:

  • The desires and educational needs of your child.
  • The desires of both parents.
  • Where your child previously attended school.
  • The commuting time from each parent’s home.
  • The associated costs to each parent.

Should You Change Your Child’s School?

School choice issues are complicated. Even if your parenting plan allows for your child to go to school anywhere within a certain district or mile radius, is it the right thing to do? Of course, there are at times very good reason for switching schools: it’s a better environment for your child, economic circumstances have changed, or you have had to move to another district after the divorce. Some experts urge parents – who may not be aware of how stressful it is – to not change their child’s school after a divorce. Attending the same school often offers your child the stable support of friends and teachers he or she knows and loves.

If after careful consideration you feel it’s in your child’s best interests to move to another school, it’s always preferable to come to an agreement with the other parent.

If you’re worried that no matter what the reason, your former spouse will simply not agree to a change, it’s best to talk with your family law attorney who can advise you of your options and help facilitate an arrangement that everyone can agree on.

Can Social Media Prove an Unfit Parent?

social-media

Beware of what you post on social media during divorce and child custody proceedings.

That may sound like a dire warning, but as reported by the American Academy of Matrimonial Lawyers, 75% of family law attorneys are using social media evidence in divorce and child custody cases. That means if one or both parents fail to exercise restraint when posting on their Facebook page, Twitter feed, or any other online social media platforms, it could be used against them in a child custody matter. Just one wrong post can cause more trouble than it’s worth.

Social Media is Not the Problem

It’s not uncommon for a parent’s fitness to raise a child to be called into question during a custody dispute. Social media has added fuel to the fire for proving unfitness, but social media itself is not the problem.

It’s the behaviors and comments of the poster that can influence the court. Even seemingly innocent posts can be misinterpreted or misrepresented to paint a parent in an unflattering light. Long gone are the days of charts, letters, and documents being the sole source of evidence. Today’s courts also accept text messages, emails, and screen shots of social media content in child support and custody dispute hearings.

Family Court and Social Media

In many cases, the information obtained from social media accounts is not as inflammatory as one parent may think. But posts about spending habits, irresponsible behavior, and personal relationships can be used to call into question a parent’s character. California family law courts focus on what is best for a child. They look to establish whether the child is safe, and if a parent’s lifestyle is in any way negatively affecting the child’s well-being. Posts about excessive partying or illegal activity (such as drug use) will most certainly be taken seriously by the court. Even what friends post about the other parent could be used as evidence.

What Can I Use Against My Spouse?

It’s a good idea to check your spouse’s profiles during a child custody dispute. If you believe your spouse is posting things that could have a negative effect on – or be downright harmful to – your child, take a screen shot of the content and share it with your family law attorney. Don’t stalk your former partner on social media; monitor him or her without obsessing.

Things that might be considered by the court include:

  • Tweets or Facebook posts about a wild night out on the town when the parent is supposed to be home caring for your child.
  • Posts that cast you and/or your parenting skills in a negative light.
  • Posts that could be construed as harassment or threats.
  • Posts about any litigation, the custody proceedings, or the judge.

Be Social Media Savvy Yourself

Many people have a false sense of anonymity when they’re surfing and posting on the net. But rest assured, if you’re checking out your former spouse on social media, they’re also looking at your accounts and printing out posts for their attorney. Be careful about what you post and take the time to think about whether it could come back to haunt or harm you. When in doubt, don’t post at all. It will help you avoid additional emotional turmoil during your child custody dispute.

How Can I Impute Income To The Other Parent?

income

Under California law, both parents are equally responsible for the financial support of their children. When computing how much child support is owed or received, the court considers each parent’s income to be a key factor. Some parents choose to deliberately reduce their income to avoid the responsibility of paying support, or to increase the amount of support the other parent is ordered to pay.

Unfortunately, the children become the victims of this behavior. The court is invested in doing what is in the best interests of a child, so often it will attribute – or impute – income to one or both parents before ordering support.

Imputed Income Defined

If the court imputes income to one or both parents it is, in effect, saying that is the amount the parent could be earning. The court then bases its award of child support on that income, not what the parent claims to be earning. Judges do this to make sure children are receiving an amount that ensures their needs are met – and to prevent a parent avoiding child support altogether. For example, if a parent up until the divorce has been earning $75,000 per year and then suddenly claims they’re earning minimum wage, the court will ask for information to determine if the decrease was due to a parent trying to minimize his or her child support obligation.

When Courts Impute Income

If the court finds that the parent ordered to pay child support voluntarily quit work or deliberately lowered their income, the court may decide to ignore that change and use the most recent amount ($75,000 in our example) they were earning. The order for child support would then be based on that figure. California family courts look at three main factors when determining if income imputation is called for:

  • The ability of the unemployed or underemployed parent to earn income.
  • The opportunity for the unemployed or underemployed parent to earn income.
  • The willingness of the unemployed or underemployed parent to earn income.

If the court finds the parent has a legitimate case of job loss or pay reduction, it will not necessarily or immediately impute income to him or her.

How Do Courts Arrive at an Imputed Income Amount?

Courts look to a parent’s “earning capacity” when deciding how much income to impute:

  • Willingness to work is decided by looking at whether the parent is looking for a job, sending out his or her resume, or going for job interviews.
  • Opportunity to work looks at what, if any, appropriate jobs are available in the area.
  • Ability is usually determined by looking at a parent’s educational level, works skills, and employment history.

As evidence of a parent’s ability and opportunity to work, the court will look at various evidence.For example, it may use a vocational expert’s report or testimony and/or the most recent salary the parent was earning. If the court cannot arrive at an amount using these methods, it may impute minimum wage.

If you’re divorcing and believe your spouse should be imputed income for the purposes of child support, you may want to consult with an experienced and qualified California family law attorney to help you better understand your options.

Is All My Income Considered In Child Support Calculation?

calculate

In California, child support is mandated by law, and every child is entitled to financial support from both parents. If the parents divorce, child support is generally required. Once the court orders child support, it must be paid or there are serious consequences, including possible jail time. Child support can also be required in cases where the paying parent has no visitation rights with the child or children.

Determining Income for Child Support in California

The court cannot enforce child support payments until it makes an order for support. When parents separate, one of them must ask the court to make both an order establishing paternity and an order for child support. Once granted, the court can also award retroactive child support to the date the petition was filed.

For the purposes of determining child support, California law defines income as:

  1. Salaries, wages, commissions, and bonuses.
  2. Rents, typically from rental properties.
  3. Dividends and interest income.
  4. Pensions.
  5. Income from a trust or annuity (unless the annuity is connected to a non-income source such as personal injury proceeds).
  6. Monies received as the result of a worker’s compensation case.
  7. Unemployment and/or disability insurance benefits.
  8. Social security benefits.
  9. Spousal support received from an unrelated case.

There may be exceptions that apply to your situation. A qualified California family law attorney can tell you more.

The Statewide Child Support Guideline

 

California Family Code Section 4050 sets forth the guidelines the court must follow in applying child support rules. They include:

  • Each parent’s primary obligation is to support his or her minor children according to her or his situation and financial station in life.
  • Both parents are equally responsible for supporting their children.
  • It’s assumed the guideline is correct in all cases. Only in special instances should child support orders fall below the amount mandated by the guideline formula.
  • Child support orders must provide children with fair, timely, and sufficient support. The ordered support should also reflect California’s high standard of living and high costs of raising children compared to other states.

The Statewide Child Support Guideline is a complex algebraic formula that uses both parents’ incomes, deductions, and time spent with each child to determine a dollar amount for support (CS = K (HN – (H%) (TN)). What this means in simpler terms is that the greater the gap between income, and the less time the higher earning parent spends with the children, the more child support that parent will owe. Again, under California law, the amount of child support determined by the formula is presumed to be the correct amount owed. Unless there is a good reason why a different amount should be paid, the court is required to order the guideline figure

Learn More

Child support is a serious matter, and determining what is and is not income can be complicated. Whether you are the parent paying or the one receiving the child support payments, an experienced family law attorney who is knowledgeable on such issues can be very helpful. Remember, the goal is to guarantee that your children are well taken care of and that they receive everything they need to lead happy and healthy lives

Schedule a Free Confidential Consultation

FAQ: How Does Social Media Affect My Divorce

social-media

Facebook, Twitter, Instagram, and Pinterest. Social media accounts offer others a fun and interesting window into your world. But if you’re going through a divorce, social media posts can have serious implications and consequences, doing more harm than good.

They can adversely affect a wide range of issues: custody disputes, division of property, and spousal or child support decisions. Suddenly, what was once an enjoyable way to pass the time becomes a challenge to be overcome in court.

Social Media’s Impact on Divorce Issues

Keeping secrets in the information age is no easy task. California law allows for the discovery of information that is “not privileged” and is “reasonably calculated” to lead to discoverable evidence. What that means is that, even if you have restricted the privacy settings on your social media accounts, the court may still allow certain posts to be used for or against you. Here’s how you can be affected:

  • Child Custody and Support Proceedings. If your divorce involves issues of child custody and support, you should take extreme care in what you post. Even if they are otherwise innocent, posts referencing alcohol or drug use, brand new cars or homes, trips, dating stories, and new relationships can all affect custodial and support awards. Think twice or thrice before you post to a social media site. If there’s a chance a post could have a negative impact, it’s probably best to not post.
  • Divorce Proceedings. More than 80% of divorce attorneys nationwide have used social media as a valuable tool for collecting evidence to present to the court. And as long as requests can be argued to appear reasonably calculated to lead to the discovery of admissible evidence, courts have allowed them. What can you do? Act as if every social media post – or any other electronic communication like email – can and will be used against you in court. And keep in mind that friends you and your former spouse shared during the marriage may be alerting him or her to posts (or even private messages) you make or send.
  • Restraining and Protective Orders. If you have a restraining or protective order in place, commenting on, liking, or tagging your former spouse may be enough to violate the order. Courts are more frequently viewing social media speech the same way they do “live” conversations. Be incredibly careful in what you post.

Visitation Rights.

Social media and technology is not all bad news for your divorce. For divorced parents living a distance from each other, it can allow children to engage in ordered visitation schedules. Webcams and video chats allow for virtual visits and some states have passed specific laws that allow electronic communication to supplement face-to-face visitations.

Learn More

Many spouses going through a divorce freely text, email and update their status without considering the strategic risks and dangers that come along with these types of electronic communications. Before you post your next social media update or hit that send button, stop and think about the effect it might have on your divorce proceedings. An experienced California family law attorney can explain more about the implications of using social media during your divorce. While it may be an important part of your life, you may ultimately decide it’s best to stay off social media while your case is pending.

FAQ: Are There Ways To Reduce Alimony?

alimony

California family law courts order spousal support to ensure that the standard of living experienced during the marriage is maintained to a reasonable extent after the divorce. Regardless of what you may have heard, that doesn’t mean that spousal support is fixed for life. In fact, California law does not favor indefinite spousal support, or alimony. If you or your spouse were awarded spousal support in your divorce, it is possible to have that support reduced.

Ways to Reduce Spousal Support After Divorce

Unless the conditions under which spousal support can be reduced or terminated are specifically addressed in your divorce agreement or court order, the paying spouse can request the court to order a reduction. There are three main steps in determining whether you’re entitled to a reduction.

1. Analyze the Spousal Support Order. There are no shortcuts to winning a spousal support reduction, and it isn’t enough to ask the court for one because you think it’s called for. Make sure you fully understand what the original order calls for. Check what, if any, provisions for modification or non-modifiability are outlined in it.

2. Analyze Your Former Spouse’s Change of Circumstances. One of the top reasons for a reduction in spousal support is the changing circumstances of one or both parties. What does that mean? Simply put, it’s the reason you believe a reduction is justified. Common changes in circumstances include:

• The paying spouse’s income has decreased since the spousal support was ordered.

• The receiving spouse’s income has significantly increased since support was ordered.

• The receiving spouse is now living with another partner. Sharing a home with a roommate, no matter what gender, does not qualify.

3. Prove Your Claim Through Evidence. Once you understand your original spousal support order, and you’ve identified any changing circumstances, you’ll need to produce evidence to the court that backs up your request for reduction. This can be in the form of financial documents, written declarations, oral testimony, or a combination of all three.

What the Court Considers

The court contemplates several factors when deciding whether a reduction is justified. Illness, unemployment, and remarriage are all causes for consideration. So, too, are a party’s age and physical and emotional condition. Keep in mind that the courts do not look kindly on those who voluntarily leave a job or seek a lower paying one simply to avoid paying the ordered support.

A reduction in spousal support can often be more difficult and complicated than obtaining the original order. That’s because in post-judgment divorce orders, the family court has certain conditions for modification and must use a complex evaluation, not a computer program, for determining if a change is warranted

An experienced California family law attorney can help you evaluate your current order and advise whether a request for reduction is proper. If you’re facing a spousal support modification request and want to oppose it, an attorney can tell you whether the request for modification is justified and help you oppose it if necessary.

FAQ: What Can I Do To Prepare For Divorce?

magnify-glass-faq

It’s said when you’re going through a tough time, it helps to know you’re not alone. In the U.S., there are approximately 2.4 million divorces per year, and nearly half of all marriages in California do not last. 

Divorce is often a painful and difficult time in your life, both personally and financially. Careful planning goes a long way in helping you navigate these until now unchartered waters.

How to Prepare for Separation and Divorce

Start by making a checklist. It will not only help you get your thoughts in order, it can be emotionally calming, as well. A sense of purpose goes a long way in instilling confidence. You want to gather together documents that will be used to determine your family’s expenses:

  • Five years of state and federal tax returns.
  • Three years of bank statements.
  • A recent credit report, which you can often obtain online for free.
  • Three years of credit card statements, individually and jointly held.
  • Current balances and monthly payment amounts on other debts, like a mortgage or line of credit.
  • Current pay stubs for both spouses.

Next, assemble all the documents showing the distribution of your assets and debts:

  • Both current and date of separation bank, brokerage, investment, or other financial accounts statements.
  • Both current and date of separation retirement account statements. If any retirement account existed prior to the marriage, include a statement from the date of marriage.
  • Appraisals for real or personal property.
  • Copies of any homeowner’s policies showing value of the contents of any residence.
  • If either or both of you own a business: five years of corporate tax returns, balance sheets, shareholder agreements, and profit and loss statements. You’ll also need copies of all business insurance policies.

Finally, make an inventory of all your marital property. A quick way to do this is by photographing or videotaping all the contents of your home or homes. Don’t forget the outdoors, and include cars, boats, recreational vehicles, etc. If needed, you can always create a list later which shows the actual value of the items.

Consult an Attorney

From separation to final divorce, remember to take your time and don’t create any unnecessary pressure on yourself. Do your research, and don’t make decisions based on what happened to a family member or friend. And most of all, understand the California family law legal process. 

You don’t have to immediately retain a family law attorney, but it helps to consult with one who can give you specific advice on your own issues. It isn’t easy to make sound decisions when you’re in a stressful situation and an attorney can advise you on how to avoid making mistakes that may affect your divorce as it moves forward.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation